LIBRARY 

OF  THE 

University  of  California. 

Class 

\ 

LAW 


OF 


TAXATION  IN  TEXAS 


BY 

JOHN  S.  STEWART, 

of  the  Bar  of  Harris  County,  Texas. 


CHICAGO: 

T.  H.  FLOOD  &  CO. 

1911. 


COPYEIGHT   1911 

BY 

JOHN   S.   STEWART 


x"^ 


W 


PREFACE. 


Necessarily  to  be  useful,  a  law  book  must  "stick  to  the  prece- 
dents." Therefore  I  have  not  injected  my  personal  opinions 
but  have  given  reference  to  where  the  law  may  be  found.  In 
several  instances  where  the  courts  seem  to  be  in  conflict,  I 
have  not  given  my  personal  opinion  but  considered  it  was  only 
my  province,  in  a  book  of  this  character,  to  give  reference  to 
where  all  the  law  on  the  subject  may  be  had.  The  only  claim 
that  I  make  is  that  I  have  tried  to  arrange  the  law  under  the 
proper  head  so  that  it  may  be  readily  found.  I  considered  that 
there  was  a  need  of  this  book,  otherwise  I  would  not  have 
written  it.  The  only  book  on  this  subject  is  a  small  collection 
of  statutes  by  Messrs.  Smith  and  Teague,  which,  while  a 
splendid  little  book,  is  quite  limited,  and  was  never  intended 
to  cover  the  field  but  is  a  mere  collection  of  late  statutes'  on  the 
subject  of  Taxation. 

Taxation  enters  into  all  kinds  of  business,  therefore  this 
book  will  not  be  limited  to  any  special  attorneys  but  should 
be  useful  to  all.  The  Land  Attorney  will  need  it,  for  in  the 
examination  of  almost  any  title  to  real  estate  he  will  have  to 
pass  upon  some  tax  sale.  The  Corporation  Attorney  will  need 
it,  for  the  question  of  taxation  is  one  that  he  must  handle  con- 
stantly. The  Criminal  Attorney  will  need  it  in  violations  of 
license  and  occupation  taxes.  Every  County  Attorney,  County 
Judge,  Assessor  and  Collector  will  need  it  to  assist  him  in  the 
discharge  of  his  official  duties.  There  seems  to  my  mind 
certainly  a  sufficient  need  for  such  a  book.  My  misgivings 
is  not  that  a  book  of  this  character  is  needed,  but  whether 
I  have  performed  my  duty  in  preparing  a  careful  and  complete 
book  on  this  subject.  My  object  in  writing  this  book  is  that  it 
may  be  of  use  to  the  members  of  my  profession  in  Texas,  and 
if  I  have  succeeded,  even  in  a  limited  degree,  in  lessening  their 
labors  I  am  satisfied. 

JOHN   S.   STEWART. 
Houston,  Texas,  July  27,  1910. 


235477 


To 

My  Father^  the  late  Charles  Stewart, 

of  the  Harris  County  Bar, 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

GENERAL  PROVISIONS,  DEFINITIONS,  TERMS,  ETC. 
Sec. 

1.  Taxes. 

(a)  Refer  to  what. 

(b)  Definition  of. 

2.  Must  be  equal  and  uniform. 

3.  Nature  and  extent  of  power. 

4.  All  property  liable  for  taxes. 

5.  How  levied  and  collected. 

6.  Legislative  power  and  authority. 

7.  Legislature  has  no  power  to  release  taxes. 

8.  Real  estate  includes  what. 

9.  Eminent  domain,  Taxation  not. 

10.  Money. 

11.  Farm  products. 

12.  State  releases  mineral   right  but  not  taxes. 

13.  Federal  Const,  not  violated  by  Delinquent  Tax  Act. 

14.  Tax  laws  construed  liberally. 

15.  Due  course  of  law.  , 

16.  Official  duty  can  not  be  delegative. 

17.  Partition — Allowance   for   taxes   paid. 

18.  Property  bought  in  held  in  trust  when.  ' 

19.  Road  and   bridge   a  county  tax. 

20.  Special  fund  not  to  be  diverted. 

21.  Dedication. 

22.  Telegraph  company — Constitutional  law. 

23.  Deed  of  trust  providing  for  payment  of  taxes. 

24.  Payment  will  be  enforced. 

25.  Non-payment  of  taxes  presumption  that  right  has  reverted   to 

State. 

26.  Rights  not  affected  by  failure  to  pay  taxes,  when. 

27.  Where  mortgagee  pays,  what  rights  does  he  have? 

28.  Sale  of  one  tract  to  pay  taxes  on  another. 

29.  Disqualification  of  judge. 

30.  Courts  of  equity  should  not,  except  on  clearest  grounds,  inter- 

fere with  collection  of  taxes. 

31.  Where  no  provision  is  made  as  to  source  from  which  revenue 

is  to  be  derived. 

32.  Taxable  when. 


o '  '  ■  Table  of  Contents. 

Sec.  •    . 

33.  Vested  rights  in  taxes. 

34.  De  facto  oflBcers. 

35.  State  shall  have  judgment,  except  when. 

36.  Tenant  may  purchase  tax-title. 

37.  Timber  on  public  land. 

38.  Where  tax  can  be  divided. 

39.  Detached   territory,  liability  for  taxes. 

CHAPTER  II. 

LEVY. 
Sec. 

40.  State  and  county  taxes,  how  levied. 

41.  Term  of  court,  adjourned  meeting. 

42.  Levy  not  full  and  explicit — How  explained. 

43.  Levy  valid  if  not  suflScient, 

44.  Directory,  when. 

45.  Must  be  a  levy. 

46.  Levy  by  city  or  town. 

47.  Self-acting  levy. 

48.  May  compel  levy  by  mandamus. 

49.  Levy  must  be  made  in  the  mode  prescribed. 

50.  Levy  based  upon  assessment  roll  when  to  be  made. 

51.  Time  and  manner  of  levy. 

52.  Power  of  counties  to  levy  under  Act  of  1848. 

53.  Annual. 

54.  Debts  existing  prior  to  Constitution  of  1876. 

55.  Puri)ose  of  levy  must  be  stated. 

56.  Levy  at  call  term  of  County  Court. 

57.  See  order  of  Commissioners'  Court  held  not  to  be  general  levy. 

58.  Road  tax — Limitation  of  levy. 

59.  Partial  illegality. 

60.  Levy  of  tax  to  provide  for  the  payment  of  debts. 

61.  Not  in  excess  when. 

62.  Cannot  exceed  limit — Excessive. 

63.  Mandamus  will  not  lie  when  limit  is  reached. 

64.  Levy  of  city  taxes  for  15  months  valid,  when. 

65.  Commissioners'  Court — ^Validity  of  tax  levy — Collateral  attack. 

66.  City  of  El  Paso. 

67.  Sufficiency  of  levy. 

68.  Extra  levy. 

69.  Levies  for  state  and  county  taxes. 

70.  Certain  tax  rolls  for  1905  validated. 

71.  Validating  levies  at  special  session  of  Commissioners'  Court. 

72.  Act  30th  Legislature  creating  a  board  to  calculate  state  taxes. 


Table  of  Contents. 
CHAPTER  III. 

ASSESSMENT. 
Sec, 

73.  Annual  assessment  a  lien. 

74.  Assessment  necessary. 

75.  Proceedings  where  lands  can  not  be  easily  described. 

76.  What  is  an  assessment. 

77.  Place   of   assessment. 

78.  Taxes  not  to  be  paid  twice,  etc' 

79.  Leasehold  interests  in  public  lands. 

80.  Should  use  forms  of  comptroller. 

81.  Irregularities  free  from  fraud. 

82.  Manner  of  making   out  tax  lists   directory. 

83.  Tract  or  lot. 

84.  United  States  paper  money  taxable. 

85.  Assessed  as  money  on  hand. 

86.  Taxpayer  to  make  oath. 

87.  When  assessments  to  be  made. 

88.  Irregular  assessments  valid. 

89.  Mistake  In  name  of  owner. 

90.  Failure  to  list  for  taxation. 

91.  Collector's  roll  not  part  of  assessment. 

92.  Assessment  not  on  proper  roll. 

93.  No   presumption  as   to   regularity   after   lapse  of  time. 

94.  Void  assessment — Remedies. 

95.  Property  added  to  list  valid. 

96.  Credits  assessed  where. 

97.  Showing  rate  of  assessment  by  custom. 

98.  Refused  to  render  list. 

99.  Tax  rolls — ^When  admitted  in  evidence. 

100.  Double  assessment. 

CHAPTER  IV. 

ASSESSMENT  OF  RENDERED   PROPERTY. 
Sec. 

101.  When  property  to  be  rendered. 

102.  How  to  be  rendered. 

103.  Where  to  be  rendered. 

104.  To  be  rendered  in  but  one  county. 

105.  Live  stock,  when  and  how  rendered. 

106.  Vessels,  where  listed. 

107.  Railroads — Telegraphs,   etc. 

108.  Listing  for  others. 

109.  Shall  list  under  oath. 

110.  The  statement  and  its  requisites. 


10  Table  of  Contents. 

Sec. 

111.  Certain  credits  and  stocks  not  to  be  listed. 

112.  Rendition  of  real  estate. 

113.  Assessment  of  personal  property  by  rendition  by  banker,  broker, 

etc. 

114.  No  deductions  in  certain  cases. 

115.  Assessments  and  collections  of  corporate  property. 

116.  Assessments  in  owner's  name. 

117.  Relating  to  the  list  of  property  given  in  by  property  owners. 

118.  Act  of  May   16,   1907,   relating  to  the  listing  and   valuation  of 

property. 

CHAPTER  V. 

ASSESSMENT  OF  UNRENDERBD  PROPERTY. 
Sec. 

119.  Unrendered,   how   rendered. 

120.  Back  taxes  on  unrendered  lands. 

121.  Assessor  to  make  rolls  of  unrendered  property. 

122.  Tax  sale  of  unrendered  property — How  it  should  be   assessed. 

123.  Unrendered  property  shall  be  ascertained,  etc.,  by  assessor. 

124.  Unrendered  property  list  in  cities  to  be  examined  by  board. 

125.  Assessment  of  property  not  assessed  for  taxes. 

CHAPTER,  VI. 

REASSESSMENT  OF  PROPERTY  FOR  TAXES,  WHICH  HAS  NOT 
BEEN  ASSESSED,  OR  WHICH  HAS  BEEN  IMPROPERLY  AS- 
SESSED. 

Sec. 

126.  State  and  county  taxes. 

127.  Assessment  of  real  property  for  previous  years. 

128.  Back  taxes  on  unrendered  lands. 

129.  Comptroller  to  prepare  list  each  year. 

130.  Comptroller  to  forward  list. 

131.  The  boards  to  value  such  lands. 

132.  Three  rolls  to  be  made. 

133.  Assessment  of  back  taxes  due  cities  and  towns. 

134.  Reassessment. 

135.  Act  of  1897  did  not  validate  assessment  for  back  years. 

CHAPTER  VH. 

DELINQUENT  TAX  ACT  OF  1905  PROVIDING  FOR  THE  ASSESS- 
MENT AND  COLLECTION  OF  TAXES  IN  CERTAIN  CASES. 
Sec. 

136.  Taxes — Providing  for  the  assessment  and  collection. 

137.  Act  29th  Leg.,  ch.  130,  Sec.  7,  valid. 

138.  Mandamus  to  turn  over  percentage  need  not  be  set  out  in  detail. 


.    Table  of  Contents.  11 

Sec. 

139.  Tax  collector  duties  in  regard  to  paying  percentage. 

140.  Adequate  remedy. 

141.  Parties — Joinder. 

142.  County  attorney  can  not  contract. 

(a)  Who  may  be  employed  to  make. 

(b)  Can  not  transfer  tax  as  compensation 

(c)  Compensation — Quantum  meruit. 

CHAPTER  VIII. 

BULK  ASSESSMENT. 

Sec. 

143.  Act  of  1897,  power  to  correct  bulk  assessments. 

144.  Tract   or  lot   defined. 

145.  Where  two  lots  belong  to  one  owner  and  form  one  parcel  of 

land,  they  may  be  assessed  for  taxation  together. 

146.  If  two  lots  are  used  as  one  assessment  together  good. 

147.  Assessment  when  approved  by  taxpayer  is  binding  although  ir- 

regular. 

148.  Requisites  as  to  tax  roll,  do  not  apply  to  assessment. 

149.  Lot   must   be    separately   assessed    except    when    rendered    by 

owner. 

150.  Contiguous  tracts  held  by  one  title. 

151.  Taxes  lien  on  each   separate  tract  of  land — City  property  no 

exception. 

152.  Owner  estopped  where  his  rendition  is  adopted  on  unrendered 

roll. 

153.  Assessment  to  be  corrected — Bulk. 

CHAPTER  IX. 

ASSESSMENT— DESCRIPTION    IN. 

Sec. 

154.  Sufficiency  of  description. 

(a)   Sufficient  against  owner  good  as  to  purchaser. 

155.  Description — Literal  compliance  not   required. 

156.  Sufficiency   of  description   in  rolls   no   variance   where   full   de- 

scription is  given  in  petition. 
.157.     Rigid  description  not  required  where  owner  assesses. 

158.  Description — Failure  to  give  abstract  and  survey  number. 

159.  Description — Object  and  purpose  of. 

160.  Omission  of  certificate  or  survey  number. 

161.  Description,    sufficiency   of — Parol    evidence    to    show    property 

admissible. 


12  Table  of  Contents. 

CHAPTER  X. 

ASSESSOR  AND   HIS  DUTIES. 
Sec. 

162.  Assessor — Election  of. 

163.  Duty  of  assessor  and  collector  of  cities  to  make  lists  of  prop- 

erty, etc. 

164.  Unrendered  property  in  cities  shall  be  ascertained,  etc.,  by  city 

assessor  and  collector. 

165.  Election   and  term  of  assessor, 

166.  Vacancies,  how  filled. 

167.  Oath  and  bond. 

168.  Purview  of  the  bond. 

169.  New  bond. 

170.  Bond  for  county  taxes. 

171.  May  appoint  deputies. 

172.  May  administer  oaths. 

173.  The  oath. 

174.  Where  and  how  the  list  may  be  made. 

175.  Penalty  for  failure  to  attest  oath,  etc. 

176.  Fraud  upon  the  public  revenue. 

177.  Taxpayer  to  make  oath. 

178.  When  assessments  to  be  made. 

179.  Irregular  assessments  valid. 

180.  If  taxpayer  is  absent,  etc. 

181.  Or  refuses  to  list. 

182.  Duty  of  assessor. 

183.  Abstracts  to  be  furnished. 

184.  Books  to  be  furnished. 

185.  How  to  be  filled. 

186.  Blocks  and  lots  in  cities. 

187.  Duties  of  assessor  as  to  same. 

188.  To  be  kept  in  office. 

189.  Lands  not  on  abstract. 

190.  Certificate  from  board  of  equalization. 

191.  Substitute  to  be  employed. 

192.  Unorganized   counties. 

193.  Manner  and  form  of  assessing. 

194.  Assessment  of  real  estate  for  all  previous  years. 

195.  Assessor  to  follow  instructions. 

196.  Duty  to  properly  assess. 

197.  Assessor  to  furnish  list  of  delinquents. 

198.  Assessor  to  furnish  list  to  board  of  equalization. 

199.  Assessor  shall  make  out  rolls  in  triplicate. 

200.  Also  rolls  of  unrendered  property. 

201.  Assessor  to  add  up  columns. 

202.  Return  and  oaths. 


Table  of  Contents.  13 

Sec. 

203.  All  lists  and  statements  to  be  filed  with  the  county  clerk. 

204.  Rolls  to  be  distributed. 

205.  Compensation  of  assessor  of  state  and  county  taxes. 

206.  How  paid  by  the  state. 

207.  By  the  county. 

208.  Penalties  for  neglect  of  duty. 

209.  Assessor  of  taxes.  ^ 

210.  Fees  less  than  maximum — Statements  of  fees  collected — ^Excess 

to  be  paid  into  county  treasury. 

211.  Deputies  and  assistants — ^Appointment  and  compensation. 

212.  Penalty  for  failure  to  charge  up  fees  for  remission  of  fees,  etc. 

213.  Payment  of  ex-oflBcio  services. 

214.  Oflacers  to  keep  a  correct  statement — Accounts  to  be  examined 

by  grand  jury. 

215.  Certain  officers  not  required  to  make  a  report  or  keep  a  state- 

ment. 

216.  Statement  of  tax  collector  and  assessor. 

217.  Fiscal  year — At  what  time  reports  must  be  made,  and  by  whom. 

218.  Commission  on  school  district  tax. 

219.  Compensation  for  funded  indebtedness. 

220.  Duty  of  assessor  as  to  unrendered  property. 

CHAPTER  XI. 

BOARD  OF  APPRAISERS. 
Sec. 

221.  Board  of  equalization — Their  qualification  and  duties. 

222.  Equalization  of  assessments. 

223.  Boards   may   equalize    without  complaint. 

224.  Assessor  to  submit  list  to  board  of  equalization. 

225.  Appointment   and   duties   of  board   of   equalization   in   cities   or 

towns. 

226.  Annual  meetings  of  said  board. 

227.  Shall  value  property. 

228.  Values  to  be  equalized  by  board. 

229.  Unrendered  property  list  to  be  examined  by  board. 

230.  Notice  to  property  owners. 

231.  Board  to  lower  values,  when. 

232.  Approval  of  lists  and  rolls  by  board. 

233.  Action  of  board  final. 

234.  Compensation  of  board. 

235.  Oath  to  be  taken. 

236.  Approval  of  board — ^Sufficient. 

237.  Excessive  assessment — Fraud — Remedy. 

238.  Determining  powers  of  board  and  assessor. 

239.  Deputy  assessor  sitting  as  member  of  board. 


14  Table  of  Contents. 

Sec. 

240.  Fraud — Reduction — Failure  to  appear — Notice. 

241.  Appellate  jurisdiction  from  city  board  valid. 
•242.  De  facto  oflBcers. 

243.  No  power  to  add  property  to  list. 

244.  Excessive  assessment  from  fraudulent  motives. 

245.  County  commissioners  not  liable  in  civil  action. 

246.  Valuation  must  first  be  made  by  assessor. 

247.  Owner  must  have  notice  of  increase. of  valuation. 

248.  List  must  be  presented  to  board. 

249.  Action  of  board  final. 

250.  Acts  of  two  members  valid. 

251.  Meeting  of  board  after  time. 

252.  Not  required  to  classify  property  on  minutes. 

253.  Valuation. 

254.  No  criterion  of  value  in  condemnation. 

255.  Const,  Art.  8,  Sec.  18,  applies  to  state  and  county  taxes. 

256.  Board  of  appeals  not  necessary  where. 

CHAPTER  XII. 

SUMMARY  SALE  OF  PROPERTY  FOR  TAXES  DUE. 
Sec. 

257.  Difference  between  sale  of  property  under  summary  sale  and 

sale  under  a  regular  judgment  of  foreclosure. 

258.  Constitutional  provision. 

259.  Forced  collection  to  begin  when. 

260.  Personal  property  may  be  pointed  out. 

261.  Tax  lien   superior  to  assignment — Attachment— Inheritance   or 

devise  except  when. 

262.  All   property  liable  for  taxes. 

263.  Sales  of  personal  property — How  made. 

264.  If  the  property  levied  upon  be  insufficient. 

265.  Sale  of  real  estate  when  personal  property  is  insufficient. 

266.  Notice  of  the  sale  of  real  estate  for  taxes — How  made. 

267.  List  to  be  posted. 

268.  Sale  of  real  estate  may  be  continued  from  day  to  day. 

269.  Sales  of  land — How  made. 

270.  The  tax  deed  and  its  requisites. 

271.  Sales  to  be  reported  to  the  Commissioners'  Court. 

272.  Redemption  of  land  sold  for  taxes. 

273.  Redemption  from  private  purchasers. 

274.  Receipt  of  collector's  notice,  when. 

275.  Relief,  when. 

276.  Certificate  of  redemption  from  collector, 

277.  Lands  to  be  bid  in  for  state,  when. 

278.  May  redeem,  how. 

279.  If  not  redeemed. 


Table  of  Contents.  15 

Sec. 

280.  May  redeem,  in  what  manner. 

281.  Commissioners'  Board  to  sit  as  a  board  of  inquiry,  wlien. 

282.  Sale  for  taxes  due  towns  and  cities. 

283.  Sheriff  to  execute  deeds. 

284.  What  must  be  proven. 

285.  Summary  sale  not  nullified. 

286.  Summary  sale  prohibited  by  Constitution  of  1869. 

CHAPTER  Xni. 

SUIT  TO  FORECLOSE  TAX  LIENS. 
Sec. 

287.  Suits  to  foreclose  liens  for  state  and  county  taxes. 

288.  The  particular  property  must  have  been  sold  or  reported  delin- 

quent before  suit  for  tax  on  same  will  lie. 

289.  Right  to  sue  for  taxes. 

290.  Consolidation  for  suits. 

291.  Delinquent  record. 

292.  Action  in  rem. 

CHAPTER  XIV. 

PARTIES. 
Sec. 

293.  Parties. 

294.  Present  owner  of  land  proper  party. 

295.  City  of  Houston. 

296.  Suit  in  name  of  city. 

297.  Bondholders  necessary  parties. 

298.  Heirs  not  necessary  parties,  when. 

299.  Husban'd  necessary  party. 

300.  County  taxes  delinquent  collectible  by  state  .  ^ 

301.  Unknown  owners,  are  not  unknown  where  title  is  of  record  and 

residence  shown. 

302.  Lien  holders. 

303.  Cases  in  point  only  when  party  is  in  possession. 

304.  All  persons  claiming  interest. 

305.  Action  against  state  officer  not  against  state. 

306.  State  necessary  party  in  action  to  restrain  collection  of  taxes. 

307.  State  officer's  right  to  sue. 

308.  One  in  possession  must  be  party. 

309.  Estate  as   defendant. 

310.  State  and  county  not  necessary  parties,  when. 

311.  Sale  before  death. 

312.  Community  or  separate  property. 


16  Table  of  Contents. 

CHAPTER  XV. 

COURTS. 
Sec. 

313.  Jurisdiction  of  courts. 

314.  Limited  jurisdiction  of  court;. 

315.  Jurisdiction  of  county  court  to  issue  injunction. 

316.  Foreclosing  of  lien  on  real  estate — ^Amount  does  not  control. 

CHAPTER  XVI. 

PLEADINGS. 
Sec. 

317.  Must  be  verified. 

318.  Sufficiency  of  verification  of  petition. 

319.  Verification  of  answer, 

320.  Answer  not  verified  must  be  specially  excepted. 

321.  Several  defendants. 

322.  Exhibits, 

323.  Lien. 

324.  Against  owner. 

325.  City  of  Galveston. 

326.  Purpose  of  tax. 

327.  Not  necessary  to  plead  details, 

328.  City  ordinances  must  be  plead  before  they  can  be  introduced  in 

evidence. 

329.  Duly  assessed  sufficient. 

330.  Description  of  real  estate, 

331.  Answer  of  defendant, 

332.  Petition  must  allege  ownership  in  assessment  against  tmknown 

owner, 

333.  Allegations   sufficient  to   arrive   bulk  assessment — Presumption 

of  legality, 

334.  Amended  petition  must  be  verified. 

335.  Cross-bill  asking  relief  invoice  tax  sale — ^Direct  attack. 

336.  Fraud  in  assessment, 

337.  Allegations-i-What  is  necessary. 

338.  Pleading  of  ordinance  sufficient, 

339.  Must  state  property  within  territory  taxed. 

340.  Description  of  land. 

341.  Answer  must  deny  specifically, 

342.  Petition  need  not  allege  existence  of  debt,  when. 

343.  Need  not  plead  city  charter  when  a  public  act. 

344.  Allegation  that  property  was  duly  assessed  sufficient, 

345.  Petition  not  demurrable,  when, 

346.  Averment  assessed  for  taxes  sufficient. 

347.  Must  state  year. 


Table  of  Contents.  17 

Sec. 

348.  Allegations  of  petition — Land  in  another  county. 

349.  Allegation  to  enjoin  irregular  assessments. 

350.  School  tax. 

351.  To  enjoin  illegal  excess  must  allege  what. 

352.  Not  defective  not  to  allege  collector's  failure  to  collect. 

353.  Must  state,  purpose  and  amount  of  tax. 

CHAPTER  XVII. 

SERVICE. 

Sec. 

354.  Service — How  made. 

355.  Notice  to  non-residents — Unknown  owners  and  other  proceed- 

ings in  suits  for  taxes. 

356.  Insufficient  service — Judgment  void. 

357.  What  citation  by  publication  should  contain. 

358.  Personal  judgment. 

359.  Jurisdiction  of  non-resident. 

360.  Citation  by  publication  strictly  construed. 

361.  Sufficiency  of  notice  and  publication  against  unknown  owners. 

362.  Citation  in  tax  cases  different. 

363.  Date  of  filing. 

364.  Act  1897  repealed  all  other  laws. 

365.  Where  one  is  in  possession  and  title  of  record. 

366.  Appointment  of  attorney  and  statement  of  facts. 

367.  Proof  of  publication. 

368.  Void  service   against  unknown  owner. 

369.  Must  describe  land. 

370.  May  be  addressed  directly  to  defendants. 

371.  Citation  against  unknown  owners  governed  by  the  special  stat- 

utes. 

372.  Proper  affidavit  must  be  filed  or  judgment  is  invalid. 

373.  May  be  collaterally  attacked,  when. 

374.  When  good  against  unknown  owners. 

375.  Liability  of  county  to  pay  for  citation  by  publication. 

CHAPTER  XVIII. 

EVIDENCE. 
Sec. 

376.  Lists  and  books  prima  facie  evidence. 

377.  Lists — Assessment  rolls  or  books  prima  facie  evidence. 

378.  Inventories  as  evidence. 


18  Table  of  Contents. 

Sec. 

379.  Plats  and  maps  as  evidence. 

380.  Copies  of  records  of  public  officers  and  courts  to  be  prima  facie. 

381.  Tax  deed  of  city  prima  facie  evidence. 

382.  Delinquent  tax  list. 

383.  Authority  to  make  sale  must  be  shown  before  tax  deed  can  be 

admissible  in  evidence. 

384.  Assessment  roll  not  admissible  when. 

385.  Admissions — Offer  of  compromise.  ^ 

386.  Prima  facie  tax  rolls. 

387.  City  ordinance — ^Admissibility  of  pamphlet. 

388.  Sworn  pleadings  not  offered  by  general  denial — Proof. 

389.  Sufficiency. 

390.  Admission  in  record. 

391.  Burden  of  proof. 

392.  Tax  list  alone  not  prima  facie  evidence. 

393.  Tax  deed  not  evidence  of  title  when. 

394.  Tax  deeds  and  rolls  not  evidence  of  levy. 

395.  Admission  in  pleadings. 

396.  To  show  valuation — Assessment. 

397.  Tax  deed  conclusive  as  to  facts  stated  therein. 

398.  Sale  for  larger  amount  void. 

399.  Admission  in  pleadings. 

400.  Presumption  of  legality  of  levy. 

401.  Not  necessary  to  show  title  when. 

402.  Levy,  prima  facie  evidence  of  facts. 

403.  Deed  of  Tax  Collector  at  summary  sale  not  evidence   of  title 

when. 

404.  Parol  testimony  where  tax  rolls  are  lost. 

405.  Admission. 

406.  Competency,  sufficiency  of  description. 

407.  List  alone  not  evidence. 

408.  In  prosecution  for  occupation  tax,  state  must  show  amount  of 

levy. 

409.  Tax  receipts  evidence  of  rendition. 

410.  Assessment  lacking  affidavit  of  Assessor  not  admissible. 

411.  Assessment  and  demand  must  be  shown. 

412.  Payment  of  taxes  as  evidence  of  partition. 

413.  Allowed  to  prove  notations  on  roll. 

414.  Copy  of  delinquent  tax  record  admissible. 

415.  Owner's  rendition  admissible  to  show  value  of  property  in  dam- 

age suit. 

416.  Payment  of  taxes  to  show  extent  of  claim. 

417.  Payment   of   city   tax   no   evidence   of   payment   of   state    and 

county  tax. 

418.  Tax  rolls. 


Table  of  Contents.  19 

CHAPTER  XIX. 

JUDGMENT. 

Sec. 

419.     Conclusiveness  as  to  all  parties. 

410.    Judgment  should  be  in  favor  of  State  and  not  its  officers. 

421.  Res  adjudicata. 

422.  Collateral  attack. 

423.  Direct  or  collateral  attack. 

(a)     When  direct  attack. 

424.  Unknown  owner — Not  subject  to  collateral  attack  when. 

425.  Recital  of  service. 

426.  Tax  judgment  must  be  void  before  it  can  be  attacked  collat- 

erally. 

427.  Judgment  against  unknown  defendants  not  valid  when. 

428.  Several  parcels  of  land. 

429.  Judgment  on  lots  in  bulk. 

430.  Must  fix  lien  on  each  lot. 

431.  Description  of  land  sufficient. 

432.  Description  insufficient. 

433.  Erroneous  description  in  rolls. 

434.  Conclusiveness  of  judgment. 

435.  Errors  of  procedure  can  not  be  looked  into. 

436.  Suit  to  set  aside  where  brought. 

437.  Judgment  for  license  tax. 

438.  Suit  against  unknown  owner  void  when. 

439.  Can  not  impeach  judgment,  when. 

440.  May  compel  levy  to  pay. 

441.  Pendente  lite. 

442.  Personal  judgment  may  be  recovered. 

443.  Personal  judgment — Levy  of  city  taxes. 

444.  No  personal  judgment  can  be  rendered  on  an  invalid  assessment. 

445.  City  entitled  to  personal  judgment. 

446.  Recitals  of  placing  in  possession — Surplusage. 

CHAPTER  XX. 

SALE  OF  PROPERTY  UNDER  DECREE  OF  FORECLOSURE. 
Sec. 

447.  Sale  of  property  for  taxes  under  decree  of  foreclosure. 

448.  Notice  of  place  of  sale  must  be  stated. 

(a)     Inadequacy  of  price. 

449.  Will  not  set  aside  for  inadequacy  where  right  to  redeem  exists. 

450.  In  gross. 

451.  Taxation — Sale  for  delinquent  taxes — Bona  fide  purchaser. 

452.  What  is  necessary  to  pass  title. 

453.  Against  unknown  heirs  and  unknown  owners. 

454.  Citation  by  publication. 


20  Table  of  Contents. 

Sec. 

455.  Effect  of  reversal  of  judgment. 

456.  Order  of  sale  must  be  shown. 

457.  Homestead — Sale  of  part  of  land — Costs — Misappropriation — Ir- 

regularity and  inadequacy  of  price. 

458.  Collateral  attack  when. 

459.  Failure  to  notify  owner  or  attorney  not  error  when. 

460.  Notice  to  defendant  necessary  under  Art.  2366,  R.  S.  1895. 

461.  Notice  only  necessary  to  be  mailed. 

462.  Bona  fide  purchaser — ^Want  of  service — Costs. 

463.  Sale  other  than  summary  constitutional. 

464.  State's  right  to  waiver  of  title  and  to  sue  for  taxes. 

465.  Sale  to  State  does  not  defeat  tax  lien. 

466.  Possession  by  purchaser. 

467.  Tax  sale  unorganized  counties. 

CHAPTER  XXI. 

TAX  LIEN. 

Sec. 

468.  Illegal  tax  sale — Res  adjudicata — Interest. 

469.  Law  of  1866  requirements  as  to  sale. 

470.  Condemnation  of  land  for  taxes  under  Act  June  2d,  1873,  must 

first  show  that  there  is  no  personal  property. 

471.  Omission  in  list  of  number  of  certificate — Sale  void. 

472.  Indefinite  description  of  land  in  assessment  conveys  no  title. 

473.  Tax  sale — Condition  precedent — Burden  of  proof. 

CHAPTER  XXn. 

TAX  DEED. 

Sec. 

474.  Assessor  and  Collector  shall  make  deed  to  purchaser  to  property 

sold  for  taxes — Effect  of  deed — Right  of  redemption,  etc. 

475.  Collector's  deed. 

476.  No  evidence  of  title. 

477.  Prima  facie  evidence  of  what. 

478.  Description  of  property. 

479.  Sufliciency  of  description. 

480.  Description  in  deed. 

481.  Deed  of  summary  sale  of  lots  in  gross  void,  when. 

482.  Description  void,  when. 

483.  Invalid, 

484.  Land  not  described. 

485.  All  prerequisites  must  be  proved. 

486.  Deed  of  Tax  Collector  strictly  construed — Reasons  for  so  doing. 

487.  Validity  of  tax  deed — Burden  of  proof. 


Table  of  Contents.  21 

Sec, 

488.  Uncertainty  in  receipts  in  deed. 

489.  Levy  must  be  shown  to  substantiate  deed. 

490.  Acknowledgment. 

491.  Effect  of  the  deed  made  by  the  City  Assessor  and  Collector  to 

property  sold  for  taxes. 

CHAPTER  XXIII. 

PURCHASER  AT  TAX  SALE. 
Sec. 

492.  Void  sale — Conditions  of  relief, 

493.  Sale  for  taxes — Notice. 

494.  Burden  of  proof  different  where  party  is  in  court. 

495.  Possession  pending  redemption, 

496.  Purchase  by  owner. 

497.  Equitable  lien  for  taxes  paid. 

498.  Not  entitled  to  refund  under  void  judgment. 

499.  Not  innocent  purchaser  when. 

500.  Acquired  no  title  against  one  in  possession  not  a  party  to  suit. 

501.  Legality  of  partnership  to  purchase  at  tax  sale. 

502.  Right  to  question  title  without  payment  of  taxes, 

CHAPTER  XXIV. 

PURCHASER  IN  GOOD  FAITH, 
Sec. 

503.  Right  to  have  amount  paid  refunded, 

504.  Purchaser  in  good  faith. 

505.  Purchaser  of  property  with  taxes  due. 

CHAPTER  XXV, 

IMPROVEMENTS  IN  GOOD  FAITH, 
Sec. 

506.  May  claim  improvements  in  good  faith  under  tax  title  not  void 

on  its  face. 

507.  Void  tax. 

508.  Evidence   of,  not  sufficient, 

509.  Under  tax  deed  must  prove  prerequisites, 

CHAPTER  XXVI. 

VENDOR  AND  VENDEE. 
Sec. 

510.  Purchaser  under  warranty  deed, 

511.  Sale  after  January  1st. 

512.  Assumption  of  taxes  by  vendee, 

513.  Implied  warranty  against  tax  lien. 

514.  Cattle,  sale  of. 


'^'^  Table  of  Contents. 

CHAPTER  XXVIL 

TAX  LIEN. 

Sec. 

515.  Delinquent  taxes  lien  on  land. 

516.  Tax  lien  superior  to  assignment,  attachment,  inheritance  or  de- 

vise, except. 

517.  Foreclosure  and  sale  for  past  releases  all. 

518.  Purchaser  under  tax  judgment. 

519.  Lien  only  on  separate  tracts. 

520.  Foreclosure  of  tax  lien. 

521.  Priority  of  tax  lien,  ' 

522.  When  lien  attaches. 

523.  Tax  lien — Public  use. 

CHAPTER  XXVIH. 

PAYMENT. 
Sec. 

524.  Taxes  payable  in  money  or  scrip. 

525.  Payment — How  proved. 

526.  Where  made. 

527.  Penalty  of  failure  to  pay  taxes. 

528.  Taxes,  etc.,  of  cities  of  less  than  10,000  inhabitants  collectible  in 

current  money  only. 

529.  Action  will  not  lie  against  Tax  Collector,  when, 

530.  What  constitutes  involuntary  payment. 

531.  Not  compulsory,  payment. 

532.  Payment — How  made. 

533.  Payment  in  coupons  must  be  before  suit. 

534.  Receipts  evidence  to  show  payment. 

535.  Receipt  no  positive  evidence  of  payment. 

536.  Right  to  rebut  receipt  and  show  that  taxes  were  not  paid. 

537.  Scrip  not  receivable. 

538.  Certificate  of  Tax  Collector  not  sufficient  evidence  of  payment  of 

taxes. 

539.  Payment  in  warrant. 

540.  May  compromise  by  deed. 

541.  In  money,  not  in  services. 

542.  Reduction  of  tax  after  payment. 

543.  Tender  of  part, 

544.  Must  show  payment  of  taxes  before  validity  of  taxes  can  be  ques- 

tioned. 

545.  Presumption  of  payment  by  one  rendering. 

546.  Payment  before  taxes  are  due  not  binding  on  State, 

547.  Credit  to  Tax  Collector  not  payment. 


Table  of  Contents.  23 

CHAPTER  XXIX. 

RIGHT  TO  RECOVER  TAXES  PAID. 
Sec. 

548.  Not  authorized  may  be  recovered. 

549.  Taxes  assessed  without  authority  of  law  are  void  and  may  be 

recovered  back. 

550.  Illegal  tax — Payment  under  protest. 

551.  Taxes  paid  to  prevent  sale  are  compulsory  and  can  be  recovered. 

552.  When  taxes  paid  can  be  recovered. 

553.  Right  to  recover  taxes  paid. 

554.  Voluntary  and  involuntary  payments. 

555.  Action  to  recover  taxes. 

556.  Right  to  recover  tax  paid  at  void  sale. 

CHAPTER  XXX. 

REMEDIES  OP  TAXPAYER. 

Sec. 

557.  Can  not  mandamus  Comptroller,  when. 

558.  Injunction  will  not  issue,  when. 

559.  May  enjoin,  when. 

560.  Must  pay  amount  before  injunction  will  issue. 

561.  May  inquire  into  validity  of  taxes  after  sale  of  land. 

562.  Payment,  when  necessary. 

563.  Lapse  of  time. 

564.  Want  of  levy. 

565.  Extension  of  new  limits. 

566.  Valuation  of  property. 

567.  Relief  granted  where  other  property  is  assessed  with  owners. 

568.  Burden  of  proof. 

569.  Irregularities  of  a  tax-roll. 

570.  Tax  Collector's  deed  a  cloud  on  title. 

571.  Must  pay  tax  due,  when. 

572.  Can  not  enjoin  issue  of  bonds,  when. 

573.  Taxes  on  void  bonds. 

574.  Right  of  taxpayer  to  raise  objections  to  legality  of  tax  levy  and 

bond  issuance. 

575.  Certain  defenses  can  not  be  raised  in  suit  for  taxes. 

576.  Not  estopped  by  silence. 

577.  Taxpayer  has  interest  to  enjoin. 

578.  Relief  from  void  sale. 

579.  Payment  of  taxes  not  a  condition  precedent  to  defense. 


24  Table  of  Contents. 

CHAPTER  XXXL 

REDEMPTION. 
Sec. 

580.  Redemption  under  summary  sale. 

581.  Land  sold  to  State. 

582.  Land  sold  for  City  or  Town  taxes. 

583.  An  act  to  permit  the  owners  of  land  or  lots  sold  to  the  State  or 

to  any  City  or  Town  for  taxes  to  redeem  the  same. 

584.  Who  may  redeem. 

585.  Land  sold  to  State,  or  City — ^Act  30th  Leg. 

586.  Land  sold  to  State  or  to  any  City  or  Town. 

587.  Sec.  13,  art.  8,  of  Const;  refers  to  summary  sales. 

588.  Right  to  hold  possession  until  period  of  redemption  has  expired. 

589.  No  right  to  redeem  under  City  Charter  containing  no  redemption 

provision. 

590.  Judgment — Writ  of  possession. 

591.  Property  sold  for  taxes  prior  to  1895. 

592.  Persons  entitled  to  redeem. 

593.  Under  Charter  City  of  Houston. 

594.  Right  to  refuse  redemption  of  part  of  tract. 

595.  Owner  may  redeem  by  paying  to  the  purchaser,  even  if  he  had 

sold  to  another. 

596.  Title  remains  until  time  of  redemption. 

597.  Right  to  redeem  for  taxes  before  law  of  redemption. 

598.  Tender  may  be  made  through  agents. 

599.  Effect  of  tender. 

600.  Collector  entitled  to  what  fees. 

601.  Property  of  infant,  feme  covert  or  lunatic. 

602.  Judgment  does  not  affect  right  to  redeem. 

603.  After  two  years  title  perfect. 

604.  Right  of  redemption  before  sale. 

605.  Redemption  after  sale. 

CHAPTER  XXXH. 

EXEMPTIONS. 
Sec. 

606.  Constitutional  provision. 

607.  $250.00  furniture  exempt. 

608.  Farm  products. 

609.  Property  exempt. 

610.  Act  1906. 

611.  Act  of  30th  Leg.  exempting  certain  properties  from  taxation. 

612.  Legislature  may  release,  when. 

613.  Private  schools — Buildings — ^What  included  in  the  terms. 

614.  City  Council  may  provide  for  the  exemption  of  property  from 

taxation. 


Table  of  Contents.  25 

Sec. 

615.  School  property — ^What  is  exclusive  use. 

616.  School  house  occupied  by  family  not  exempt. 

617.  Land  connected  with  boarding  school. 

618.  Aid  in  construction  of  railroad — Sale  of  same. 

619.  Lease-hold  not  taxable  against  tenant,   when. 

620.  Timber  on  school  land  sold  not  exempt. 

621.  Church  publication  not  exempt. 

622.  Buildings  owned  by  Charitable  Institutions — Rentmg  portions  of. 

623.  Public  property. 

624.  Exemption  by  municipality  void. 

625.  Vendee  under  executory  contract  not  exempt  from  payment  of 

tax,  even  when  sold  by  County. 

626.  Property  of  municipal  corporation. 

627.  Wharf  Company,  in  which  City  owns  interest,  property  of  City. 

628.  Right  of  exemption  passed  by  sale. 

629.  Leased  State  lands. 

630.  State  lands  under  contract. 

631.  School  land— Title  in  State. 

632.  Property  exempt  from  the  operation  of  the  Act  of  1897. 

633.  To  be  construed  in  favor  of  State. 

CHAPTER  XXXIII. 

HOMESTEAD. 
Sec. 

634.  Liable  only  for  taxes  assessed  against  it. 

635.  Liable  for  taxes,  costs  and  interest  against  it. 

636.  Not  liable  for  special  improvement  assessments. 

637.  Court  costs. 

638.  Void  tax  sale — Repurchase  by  owner — ^Vendee's  lien. 

639.  Sale  of. 

640.  Wife  need  not  be  made  party. 

641.  May  be  sold  separately. 

642.  Redemption. 

643.  Executions  and  administrations. 

644.  Proceeds  from  fire  insurance. 

645.  Judgment  against  husband  good. 

CHAPTER  XXXIV. 

PERSONAL  PROPERTY. 
Sec. 

646.  Personal  estate  includes  what. 

647.  Credits  and  securities — ^National  Bank  stock — Non-residents. 

648.  Bonds  and  securities. 

649.  Duty  of  Assessor  and  Collector  of  Cities  and  Towns  to  make  lists 

of  personal  property. 


26  Table  of  Contents.       / 

Sec. 

650.  Separate  value  of  each  piece  not  required  in  alssessment. 

651.  Assessment,  description  of  property. 

652.  Cattle  taxed  in  County  where  situated. 

653.  Non-residence  of  owner. 

654.  Sale  of  personal  property. 

655.  Assessment  of  taxes  of  Telegraph  Co. 

656.  Com  and  cotton — Division  of  tax. 

657.  Cattle  ranging  in  two  Counties. 

658.  Taxes  on  indebtedness  of  non-resident. 

659.  Fish— Act  29th  Leg.,  p.  128. 

660.  Vessels — Taxable  where  owner  resides. 

661.  Vendor's  lien  notes  owned  by  non-residents,  but  within  State 

CHAPTER  XXXV. 

BANKS. 
Sec. 

662.  Sworn  statement  to  be  furnished  by  National  Banks — Penalty. 

663.  Money  and  notes  defined. 

664.  Assessment  of  real  estate  by  banks. 

665.  Only  real  estate  on  National  Banks  subject  to  taxation. 

666.  Share  of  banking  association  liable  -for  taxes. 

667.  Liability  of  bank  stock. 

668.  National  Bank  shares — Deducting  indebtedness. 

669.  National  Bank. 

670.  What  is  subject  to  taxation. 

671.  Bank  deposits — How  taxable. 

672.  National  Bank  stock. 

673.  Inequality  of  assessment  of  bank  stock. 

674.  Assessment  by  City  on  stock. 

675.  President  required  to  assess. 

676.  Deposits  to  be  deducted  as  debts. 

677.  Not  exempt,  when, 

CHAPTER  XXXVI. 

RAILROADS. 
Sec. 

678.  Assessment  by  railroads. 

679.  Railroads  to  return  sworn  statements,  when,  etc. 

680.  Property  shall  be  assessed. 

681.  Mode  of  assessment. 

682.  Municipal  taxes. 

683.  Gross  receipts. 

684.  Exemption  I.  &  G.  N.  R.  R.  Co. 

685.  Exemptions  of  property — Pleadings. 

686.  Assessment  as  to  bridges  as  roadbed. 

687.  Improper  rendition — Double  assessment. 

688.  Evidence  of  payment. 


Table  of  Contents.  27 

CHAPTER  XXXVII. 

LICENSE  AND  OCCUPATION  TAX. 
Sec. 

689.  One-half  State  tax. 

690.  Tax  shall  be  equal  and  uniform. 

691.  Levy  for  1900. 

692.  Cities  of  1900  inhabitants  or  over  incorporated  under  General 

Law  shall  have  power  to  levy  and  collect  occupation. 

693.  Occupations  that  are  subject  to  taxation. 

694.  Occupation  tax — Liabilities. 

695.  Power  of  City  Council  to  provide  for  assessing,  taxes,  etc. 

696.  Collection  of  license  tax,  etc. 

697.  Act  of  30th  Leg.  providing  for  the  levy  of  occupation  taxes  on 

certain  occupations. 

698.  Repealing  taxes  on  certain  occupations. 

699.  Act  30th  Leg.  providing  occupation  tax  on  dealers  in  malt  liquors 

in  Local  Option  Districts. 

700.  Act  30th  Leg.  in  regard  to  license  and  regulating  sale  of  intoxi- 

cating liquors. 

701.  Relating  to  the  payment  of  certain  occupation  taxes  for  remain- 

der of  1907. 

702.  Occupation  tax  upon  persons  engaged  in  the  business  of  dealing 

in  unearned  wages  of  another.  . 

703.  Tax  on  dealers  in  non-intoxicating  malt  liquors. 

704.  Occupation  tax  on  soliciting  orders  in  Local  Option  Districts. 

705.  Refunding  unearned  liquor  dealer's  license. 

706.  Cannon  crackers  or  toy  pistols. 

707.  Levy — Sufficiency. 

708.  Must  show  levy  of  tax. 

709.  Not  liable  when. 

710.  Occupation  not  property. 

711.  Courts  can  not  interfere,  when. 

712.  Billiard  table  muft  be  kept  for  profit. 

713.  Temporary  closing  does  not  forfeit  because,  when. 

714.  Occupation  and  privileges. 

715.  Telegraph  Company,  Interstate  Commerce. 

716.  State  must  first  fix  tax  before  City  can  tax. 

717.  Photograph  gallery. 

718.  Lightning  rod  agents — Interstate  Commerce. 

719.  Foreign  corporation — Interstate  Commerce. 

720.  Commercial  travelers. 

721.  Keeping  pool-table  without  license. 

722.  Fine  for  violating  License  Law. 

723.  Liquor  property  of  firm  no  defense. 

724.  Vendor  of  medicine. 

725.  Barber. 


28  Table  of  Contents. 

Sec. 

726.  Oil  producers. 

727.  Indictment  not  bad  for  duplicity. 

728.  Letting  wagon  for  hire. 

729.  Interstate  Commerce. 

730.  City  ordinance — Vehicle  not  taxed  by  state,  void. 

731.  Social  club. 

732.  Real  estate  agent  can  collect  commission,  when. 

733.  Wild  West  shows. 

734.  Local  option — Sale  of  liquors.  ' 

735.  Banks — Uniformity  of  taxation. 

736.  Occupation — Flying-Jenney. 

737.  Sufficiency  of  information.  ^ 

CHAPTER  JXXXVIII. 

CITIES   AND   TOWNS. 
Sec. 

738.  Cities  and  towns  having  a  population  of  10,000  or  less. 

739.  Cities  having  more  than  10,000  inhabitants. 

740.  Debts  incurred  prior  to  adoption  of  present  constitution. 

741.  Counties  and  cities  on  the  coast  of  the  Gulf  of  Mexico. 

742.  School  district. 

743.  Taxes  due  towns  and  cities. 

744.  Lands  in  cities  and  towns. 

745.  Power    of    city    council  to    regulate    tax    lists — Assessment    of 

taxes,  etc. 

746.  Duty  of  taxpayers  to  render  inventory  of  property,  etc. 

747.  Abstract  and  survey  not  necessary,  when. 

748.  May  prescribe  mode  of  assessment. 

749.  Burden  of  proof. 

750.  Limitation  on  power  to  tax. 

751.  No  ordinances  necessary  to  empower  with  authority  to  sue. 

752.  Cities  incorporated  under  general  law  may  license  certain  occu- 

pations. 

753.  May  license,  etc.,  peddlers,  theatres,  etc. 

754.  May  license,  etc.,  circuses,  etc. 

755.  May  license,  etc.,  hackmen  and  prescribe  their  compensation,  etc. 

756.  May  license,  etc.,  billiard  tables,  etc. 

757.  May  authorize  proper  officer  to  grant  license,  etc. 

758.  May  tax  street  railways. 

759.  Power  over  finances  of  city. 

760.  City  bonds  shall  specify  what. 

761.  Bonds  form  taxation  and  may  be  used  to  pay  taxes. 

762.  Tax  laws  to  remain  in  force. 

763.  Laws  to  enforce  collection  continued  in  force,  and  all  defenses 

to  bonds  cut  off. 

764.  Tax  collector — Liability — Governor  to  appoint,  when. 


Table  of  Contents,  29 

Sec. 

765.  Gulf  cities  may  issue  bonds  for  harbors,  etc. 

766.  Tax  to  be  levied,  interest  paid  and  bonds  sold,  etc. 

767.  Ad  valorem  tax. 

768.  To  levy  and  collect  tax  and  issue  bonds  for  improvements,  build- 

ings, etc. 

769.  Cities  of  ten  thousand  inhabitants  and  over  to  levy  and  collect 

tax — ^Validating  act. 

770.  Debt  shall  not  be  created  unless  provision  be  made  to  pay  the 

same. 

771.  Power  of  city  council  to  provide  for  collection  of  taxes. 

772.  Taxes  for  payment  of  indebtedness. 

773.  Board  of  aldermen  may  levy  tax — How  much — (Cities  and  vil- 

lages) . 

774.  Taxes  by  whom  collected — Sale  of  property  for. 

775.  Real  estate  may  be  redeemed. 

776.  When  purchaser  is  a  non-resident. 

777.  Where  property  is  liable  for  taxes  and  owner  is  unknown. 

778.  Incorporations  for  school  purposes. 

779.  Power  of  cities  in  general  to  levy  taxes. 

780.  Tax  can  be  collected  when  void  portion  ascertainable. 

781.  Duty  of  assessor  and  collector  in  regard  to  collection  of  taxes. 

782.  Property  of  taxpayer  shall  be  levied  and  sold  for  taxes,  when. 

783.  Assessor  and  collector  shall  make  deed  to  purchaser  to  property 

sold  for  taxes — Effect  of  deed. 

784.  Sale  may  take  place  at  another  time  than  that  first  advertised, 

when. 

785.  Property  shall  be  struck  off  to  city,  when. 

786.  Levy  of  taxes. 

787.  Record  of  levy. 

788.  Resolution  sufficient  basis  for  suit  when. 

789.  Right  to  sue. 

790.  Mandamus — Purpose  of  tax  may  be  shown. 

791.  Levy— Street. 

792.  Inquiry  into  legality  of  corporation  of  town. 

793.  Ordinance  providing  for  the  issuance  of  bonds — Sufficient,  when. 

794.  Cities  of  over  10,000  may  change  rules  of  evidence. 

795.  Can  not  raise  question  of  corporate  existence  in  tax  suits. 

796.  Reincorporation  of  abolishing  municipality. 

797.  Rev.  Statutes  1895,  Art.  487. 

798.  Right  of  cities  to  sue  under  charter  provisions  not  taken  away  by 

general  law. 

799.  City  of  Houston. 

800.  Bonds  for  existing  debts. 

801.  Tax  on  bonds  sold  to  city. 

802.  Majority  of  aldermen  sufficient  to  pass  tax  levying  ordinance. 

803.  Interest. 

804.  Mandamus. 

805.  Ordinance  not  resolution,  when. 


30  Table  of  Contents. 

Sec. 

806.  Sufficiency  of  levy. 

'  807.  Right  of  town  to  maintain  action. 

808.  Cities  and  towns  may  adopt  general  state  law  in  regard  to  col- 

lecting taxes. 

809.  De  facto  corporation. 

810.  Bawdy  house  license. 

811.  Galveston. 

812.  Cities  over  10,000  not  within  limit. 

813.  Tax  for  school  purposes  valid. 

814.  Implied  authority  to  levy  tax. 

815.  Limitations  of  power — ^Application  of  tax  fupd. 

816.  Towns  which  may  or  have  abolished  their  corporate  existences. 

817.  Collection  of  taxes  where  corporation  is  abolished. 

818.  Relating  to  issuance  of  bonds  and  levy  of  taxes. 

CHAPTER  XXXIX. 

SCHOOLS  AND  SCHOOL  DISTRICTS. 
Sec. 

819.  Act  of  April  5th,  1907,  fixing  rate  for  free  school  purposes. 

820.  Local  taxation  for  school  purposes. 

821.  Levy  for  maintenance — Increase  of  levy — Hen. 

822.  Power  to  levy  tax. 

823.  Levy  once  exercised  is  exhausted  for  years. 

824.  Levy  of  taxes  vested  in  local  boards. 

825.  Failure  to  designate  levy  by  school  districts  only  an  irregularity. 

826.  Action  on  part  of  city  required. 

827.  Qualification  of  voter. 

828.  Bondholders  necessary  parties,  when. 

829.  Irregularities  will  not  restrain  the  collection  of  tax. 

830.  Sufficiency  of  notice  to  impose  tax. 

831.  Separate  roll  not  necessary. 

832.  Can  not  establish  lien,  when. 

833.  Defense — ^Not  available. 

834.  Limitations  on  rate. 

835.  Incorporated  city  or  town — Limitation  of  tax. 

836.  Excessive  levy  curative  act. 

837.  School  tax — City  council  must  levy. 

CHAPTER  XL. 

INTEREST  AND  PENALTIES. 

Sec. 

838.  Constitution. 

839.  Banks. 

840.  Interest  can  not  be  charged  before  tax  is  due. 


Table  of  Contents.  31 

Sec. 

841.  From  date  of  judgment — Except. 

842.  Not  usurious. 

843.  Contract  to  pay  taxes  not  usurious. 

844.  Damages  in  dissolution  of  injunction. 

845.  No  right  to  charge  interest  without  authority. 

846.  State  entitled  to  interest.        , 

847.  Taxes  improperly  enjoined. 

848.  Penalty  after  January  31st. 

849.  Statute  must  provide  for  interest. 

850.  No  interest  without  express  provision. 

851.  Where  part  is  illegal. 

CHAPTER  XLI. 

RETROSPECTIVE  AND  EX-POST  FACTO  LAWS. 
Sec. 

852.  Omitted  property. 

853.  Levy. 

854.  Mode  of  procedure. 

855.  Evidence. 

856.  Can  not  prescribe  retroactive  penalty. 

857.  Remedy  pending  litigation. 

CHAPTER  XLII. 

EFFECT  OF  REPEAL  OF  TAX  LAWS. 
Sec. 

858.  Whether  taxes  are  to  be  collected  by  law  enforced  at  the  time  of 

levy  and  if  repealed  and  when  by  subsequent  legislation. 

859.  City's  rights  under  repealed  charter. 

860.  Deed. 

861.  Retroactive  law  taking  away  any  right  unconstitutional. 

862.  Redemption. 

863.  Repeal  of  former  law. 

CHAPTER  XLHI. 

ADVERSE  POSSESSION. 
Sec. 

864.  Statutory  provision. 

865.  Tax  deed. 

866.  Must  pay  taxes. 

867.  Payment  of  taxes  not  possession. 

868.  Presumptive  possession. 

869.  Payment  of  taxes  under  forfeited  survey. 

870.  Pleading  possession. 


32  Table  of  Contents. 

Sec. 

871.  Limitation. 

872.  Possession  under  void  deed  extends  to  what. 

873.  Payment  of  taxes  by  third  person. 

874.  Void  deed  will  not  support  limitation. 

875.  Tract  inclosed  with  others  and  use  of  part. 

876.  Can  not  establish  title  by  payment  of  taxes,  when. 

877.  Invalid  tax  deed  will  not  support  limitation. 

878.  Must  prove  payment  of  taxes  on  all  of  tract  claimed. 

879.  Tax  roll  evidence  of  payment. 

880.  Tax  deed  not  good  under  three  years  statutes,  when. 

881.  Tax  deed  must  describe  property. 

882.  Redemption  period,  not  necessary  to  re-register  after  such  period. 

883.  In  whose  name  to  be  assessed. 

884.  Description  of  taxes — ^Failure  to  pay  taxes. 

885.  Only  title  of  owner  at  time  of  sale  passed. 

886.  Payment  shown  without  evidence  of  assessment. 

887.  Tax  deed  will  not  support  limitation,  when. 

888.  Not  entitled  to  hold  against  purchaser  at  tax  sale,  when. 

889.  Not  interrupted  by  tax  suit. 

890.  Description  in  assessment.  ^ 

891.  Land  must  be  defined. 

892.  Must  pay  taxes  to  acquire  title  under  five-years  statute  of  lim- 

itation. 

893.  Presumption  of,  for  whom  paid. 

894.  Voidable  judgment  to  show  three-years  limitation. 

895.  Tenant  and  landlord. 

896.  Payment  of  taxes  no  proof  of  possession. 

897.  Payment  of  taxes  on  land  different  from  location  in  deed. 

898.  Failure  to  pay  taxes  weakens  claim  on  land. 

899.  Possession  not  adverse  during  time  allowed  for  redemptit   ' 

900.  Undivided  interest. 

901.  Tax  deed  will  support  statute  of  limitation. 

CHAPTER  XLIV. 

LIMITATION. 
Sec. 

902.  State  law. 

903.  State  and  county  taxes  not  barred  since  1876. 

904.  City  of  Houston, 

905.  A  retroactive  law  of  limitation.    • 

906.  State  and  county  taxes  not  barred. 

907.  Four-years  limitation  of  actions. 

908.  Limitation  against  action  for  taxes — Applies  to  municipal  cor- 

poration and  purchaser. 

909.  Suit  to  recover  land  sold  for  taxes. 

910.  Repeal  of  act  not  a  bar  to  limitation. 


Table  of  Contents.  33 

Sec. 

911.  Constitutional  law,  releasing  debt  to  city. 

912.  Constitutionality  of  revocation — ^Law  of  limitation. 

913.  Installments  on  bonds  barred  in  four  years. 

914.  Reasonable  time  allowed  after  passage  of  limitation  act  in  which 

to  file  suit. 

915.  Time  act  repeal  not  to  be  computed. 

916.  Mere  lapse  of  time  no  defense. 

917.  Limitation  of  action  for  money  paid  under  protest. 

CHAPTER  XLV. 

TAX  UPON  GROSS  RECEIPTS. 

Sec. 

918.  Act  providing  for  levying  and  collecting  taxes  upon  the  gross 

receipts  of  certain  individuals,  firms  and  corporations, 

919.  Gross  receipts  tax  bill. 

920.  Injunction  will  not  lie  to  restrain  oflBcers. 

921.  Not  applicable  where  road  is  incorporated  under  act  of  Congress. 

922.  Taxes  on  corporate  privileges. 

923.  Oil  companies. 

924.  Interstate  commerce  does  not  apply. 

CHAPTER  XLVI. 

INSURANCE  COMPANIES. 
Sec. 

925.  Act  of  1905. 

926.  Occupation  on  gross  premiums. 

927.  Insurance  companies. 

928.  Gross  receipts. 

CHAPTER  XLVII. 

IMPROVEMENT  DISTRICTS. 
Sec. 

929.  Law  regulating  the  mode  of  establishing  same  and  levying  and 

collecting  taxes  In  same. 

CHAPTER  XLVin. 

DRAINAGE  TAX. 
Sec. 

930.  Acts  of  31st  Leg.,  showing  mode  of  levying  and  collecting. 


34  Table  of  Contents. 

CHAPTER  XLIX. 

TAX  FOR  CAUSEWAYS. 
Sec. 

931.  Tax  for  causeways. 

CHAPTER  L. 

NAVIGATION  DISTRICTS. 

Sec. 

932.  Act  of  the  31st  Legislature  providing  for  navigation  district  and 

prescribing  mode  and  manner  of  collecting  taxes  in  same. 

CHAPTER  LI. 

INHERITANCE  TAX. 

Sec. 

933.  An  act  to  tax  property  passing  by  will  or  by  descent  or  by  grant 

or  gift;  taking  effect  on  the  death  of  the  grantor  or  donor. 

CHAPTER  LH. 

INTANGIBLE  ASSETS. 

Sec. 

934.  Providing  for  taxing  intangible  assets  of  certain  corporations. 

CHAPTER  LHI. 

FRANCHISE  TAX. 
Sec. 

935.  Act  of  1905,  amending  articles  of  statutes  in  regard  to  franchise 

tax  of  corporations  doing  business  in  Texas. 

936.  An  act  to  define  the  method  of  computing  the  franchise  tax. 

937.  Franchise  of  corporation  property. 

938.  Insufficient  description. 

939.  Failure  to  pay  does  not  forfeit  charter. 

940.  Corporation  proper  defendant. 

941.  Wharf  privileges. 

942.  Double  taxation. 

943.  Street  railroad. 

944.  Delinquent  may  be  placed  in  hands  of  receiver. 

945.  Contract  over  foreign  corporations. 

946.  Act  of  the  30th  Legislature. 


Table  of  Contents.  35 

CHAPTER  LIV. 

UNORGANIZED  COUNTIES. 
Sec. 

947.  Property  in  unorganized  counties. 

948.  Lands  of  non-residents  in  unorganized  counties. 

949.  Lands  in  unorganized  counties. 

950.  Duties  of  comptroller  in  relation  thereto. 

951.  May  appeal  from  comptroller's  assessment. 

952.  May  levy  upon  and  sell  when. 

953.  Sale. 

954.  Redemption. 

955.  Tax  deed. 

956.  List  of  purchasers  to  be  kept  in  office. 

957.  Deed  shall  vest  good  title,  when. 

958.  County  taxes  to  be  paid,  when. 

959.  Comptroller  to  keep  taxes  of  unorganized  counties,  etc. 

960.  Same  subject. 

961.  Special  deposit  to  be  made  by  comptroller. 

962.  Taxes  upon  lands  of  non-residents  in  unorganized  counties. 

963.  Personal  property  where  taxable. 

964.  Newly  organized  county. 

CHAPTER  LV. 

TAX  COLLECTOR. 
Sec. 

965.  Collector  to  keep  books. 

966.  Tax  collector  to  be  furnished  books,  etc. 

967.  Unlisted  property — Supplemental  roll. 

968.  Election  and  term  of  collector. 

969.  Vacancies,  how  filled. 

970.  Sheriff  as  collector,  when. 

971.  Bonds  and  oaths  of  collector. 

972.  Liability  of  tax  collector  and  evidence  against. 

973.  New  bond. 

974.  Bond  for  county  taxes. 

975.  All  bonds  to  be  first  approved. 

976.  May  appoint  deputies. 

977.  Rolls  to  be  warrant. 

978.  Collector  for  all  taxes. 

979.  Collections — When  to  begin. 

980.  Shall  keep  office  at  county  seat. 

981.  Tax  receipt  and  its  requisites. 

982.  Quarterly  reports — Requisites  of — Duties  of  collector. 

983.  Make  report  to  Commissioners'  Court. 


S6  Table  of  Contents. 

Sec. 

984.  List  of  delinquents  and  insolvents  to  be  made  out. 

985.  Collector  to  endeavor  to  collect  delinquent  taxes. 

986.  Nou-residents. 

987.  Forced  collections  to  begin,  when. 

988.  Collector  to  file  complaint,  when. 

989.  Compensation. 

990.  For  occupation  tax. 

991.  Fees  to  be  retained. 

992.  Fees  less  than  maximum — Statements  of  fees  collected — Excess 

to  be  paid  into  county  treasury. 

993.  Deputies  and  assistants,  appointment  and  compensation. 

994.  Collection  of  delinquent  fees — Fees  not  to  be  remitted. 

995.  Penalty  for  failure  to  charge  up  fees,  or  for  remission  of  fees, 

etc. 

996.  Payment  for  ex-officio  services. 

997.  Officers   to   keep   a   correct   statement — ^Accounts   to   be   exam- 

ined by  the  grand  jury. 

998.  Certain  officers  not  required  to  make  a  report  or  keep  a  state- 

ment. 

999.  Statement  by  tax  collector  and  assessor. 

1000.  Fiscal  year — ^At  what  times  reports  must  be  made  and  by  whom. 

1001.  Compensation  for  one  levy  only,  etc. 

1002.  Payments  of  moneys. 

1003.  Notification  to  pay,  etc. 

1004.  Tax  collector  to  prepare  delinquent  tax  record. 

1005.  Collector's  fees  under  delinquent  tax  acts. 

1006.  Duty  of  the  tax  collector  to  collect  and  prepare  lists  each  year 

under  the  delinquent  tax  act. 

1007.  Must  account  for  taxes  collected  whether  valid  or  not. 

1008.  Application  of  payment. 

1009.  Duty    of   tax    collector    when    delinquent   has    no    property    in 

county  out  of  which  taxes  can  be  collected. 

1010.  Receipts  to  creditors. 

1011.  City  bonds. 

1012.  Rolls  must  be  delivered. 

1013.  Parties  to  suit  on  bond. 

1014.  Evidence  in  suit  on  bond. 

1015.  Suit  against  defaulting — Pleadings — Interest. 

1016.  Collection  by  authorized  party  is  collection  by  county. 

1017.  Suspension. 

1018.  Additional  bond. 

1019.  Removal  from  office. 

1020.  Cities — Action  on  bond — Proof  necessary. 

1021.  Successor  of  sheriff. 

1022.  No  release  of  sureties,  when. 

1023.  Practice  in  suit  against  what  must  be  shown. 

1024.  Sureties  not  released  until  new  bond  approved. 


Table  of  Contents.  37 

Sec. 

1025.  Suit  on  bond — Letter  from  comptroller  admissible. 

1026.  No  liability  as  to  county  or  sureties  on  bond  on  taxes  collected 

without  authority. 

1027.  Suit  on  delinquent  sheriff  bond. 

1028.  Can  not  question  validity  of  act  to  avoid  payment  of  moneys 

collected. 

(a)     Not  entitled  to  fees  from  state  when  land  is  bid  in  by 
state  unless  redeemed  by  owner. 

1029.  Liability  of  surety  not  limited,  when. 

1030.  Interest  on  amount  in  default. 

1031.  Suit  against  to  recover  tax  on  illegal  valuation. 

1032.  Collection  on  municipal  bonds. 

1033.  Entitled  to  one  dollar  for  each  correct  assessment. 

1034.  Rights  of  surety. 

1035.  Limitation  as  to  collecting. 

1036.  Not  liable  to  county  under  bond  to  state. 

1037.  Can  not  deny  officers'  election. 

1038.  A  trespasser,  when. 

1039.  Right  to  emoluments. 

1040.  Authority  to  tax  collector. 

1041.  Tax  collector  alone  can  collect. '        »  • 

CHAPTER  LVI. 

SHERIFF. 
Sec. 

1042.  Sheriff  tax  collector. 

1043.  Sheriff  entitled  to  fee  for  selling  and  making  deed,  etc. 

1044.  Fees  on  notices. 

1045.  Commission  on  sales 

1046.  Right   of  sheriff  to   withhold  his   costs  from   proceeds   of  tax 

sales. 

CHAPTER  LVn. 

DISTRICT  AND  COUNTY  CLERK. 

Sec. 

1047.  Fees  under  delinquent  tax  act  of  the  district  clerk. 

1048.  Delinquent  lists  to  be  recorded  by  county  clerk. 

1049.  Delinquent  lists  to  be  recorded  by  county  clerk. 

1050.  County  clerk  shall  furnish  copies,  etc. 

1051.  Fees  under  delinquent  tax  act. 

1052.  Not  entitled  to  fee  when  list  is  not  recorded. 

1053.  Entitled  to  fee  under  Act  1897. 


38  Table  of  Contents. 

CHAPTER  LVIII, 

ATTORNEY. 

Sec. 

1054.  District  and  county  attorneys  and  attorneys  employed. 

1055.  Attorney  to  represent  the  state — Fees. 

1056.  Lots  separately  assessed  and  owned  by  one  person — One  tract 

as  to  costs, 

1057.  Attorney  general — Right  to  represent  state  in  tax  suits. 

1058.  Attorney's  fees. 

1059.  Salary  incident  to  office. 

1060.  Effect  of  want  of  authority  on  judgment. 

1061.  Right  of  city  to  employ  counsel. 

1062.  Attorney's   fees — When   not  authorized. 

1063.  Liable  for  reasonable  amount  for  services. 

1064.  Failure  to  appoint  attorney. 

1065.  County  attorney  may  purchase  land  sold  at  tax  sale. 

1066.  County  attorney  must  assist  in  collecting  taxes  on  contract. 

CHAPTER  LIX. 

LOCAL  IMPROVEMENTS  BY  ASSESSMENT. 
Sec. 

1067.  Act  of  31st  Legislature  authorizing  cities  and  towns  to  con- 

struct street  improvements. 

1068.  Taxes  for  local  improvements. 

1069.  Constitutional  provisions  as  to  taxation. 

1070.  Power  of  cities  incorporated  under  general  law  to  have  street 

graded,  etc. 

1071.  Estimate  of  cost  of  improvement  shall  be  made. 

1072.  Property  levied  on  and  sold  for  taxes  for  improvements,  when 

and  how,  etc. 

1073.  Suit  against  owner  of  property  for  improvement  tax,  when,  etc. 

1074.  Constitutional. 

1075.  Valid  street  improvement  assessments. 

1076.  According  to  benefits  derived. 

1077.  Improvement  districts.    , 

1078.  Local  improvements. 

1079.  Refunding  paving  certificates. 

1080.  Improvements  of  sidewalks  under  police  power. 

1081.  Street  railroads. 

1082.  Contractor  to  look  to  property  owner. — ^Void  assessment. 

CHAPTER  LX. 

POLL  TAX:     JURORS'  QUALIFICATION  OF  VOTERS. 

Sec. 

1083.  Who  are  qualified  voters. 

1084.  Who  are  qualified  to  vote  in  city,  town,  etc.,  election. 


Table  of  Contents,  39 

Sec. 

1085.  Collection  of  poll  tax. 

1086.  What  poll  tax  receipt  must  show — Candidate  can  not  pay  taxes 

for  another. 

1087.  Persons  exempt  from  payment  of  poll  tax  to  obtain  certificate 

of  exemption — Form  of. 

1088.  Persons  not  21  years  old  to  get  certificate  of  exemption, 

1089.  When  one  swears  falsely,  duty  of  collector. 

1090.  Removing  from  one  precinct  to  another  county. 

1091.  Removing  to  another  county. 

1092.  Collector  to  require  proof  of  residence  and  of  statement,  when. 

1093.  Tax  collector's  fees. 

1094.  Tax  collector  giving  receipt  to  fictitious  persons. 

1095.  Tax  collector  giving  receipt  to  wrong  person. 

1096.  Failing  to  return  tax  receipt  to  owner. 

1097.  Selling  poll  tax  receipt. 

1098.  Exemption. 

1099.  Delinquent  may  be  compelled  to  work  road. 

1100.  Manner  of  payment  as  to  qualification  to  vote. 

1101.  Loaning  money  to  pay  poll  tax. 

1102.  Equality  and  uniformity. 

1103.  Uniformity — ^Road  law, 

1104.  Statutory  provisions — Poll  tax. 

1105.  Levy  to  pay  jurors. 

1106.  Qualification  of  juror. 

1107.  County  poll  tax. 

1108.  City  poll  tax  of  cities  of  10,000  inhabitants  or  over. 

1109.  Must  pay  to  qualify  as  juror,  if  challenged. 

1110.  Must  challenge  as  to  disqualification. 

1111.  Qualification,  poll  tax. 

1112.  Court  may  dispense  with  requirement  of  payment  of  poll  tax, 

when. 

1113.  Who  are  disqualified  in  general. 

1114.  Notice  of  election, 

1115.  Evidence  as  to  who  are  taxpayers. 

1116.  Not  necessary  that  taxpayer's  name  appear  on  roll. 

1117.  Must  be  taxpayer  in  school  district. 


LAWS   OF   TAXATION  IN   TEXAS. 
CHAPTER  I. 

GENERAL  PROVISIONS,  DEFINITIONS,  TERMS,  ETC. 


Sec. 

1.  Taxes. 

(a)  Refer  to  what. 

(b)  Definition  of. 

2.  Must  be  equal  and  uniform. 

3.  Nature  and  extent  of  power. 

4.  All  property  liable  for  taxes. 

5.  How  levied  and   collected. 

6.  Legislative     power     and     au- 

thority. 

7.  Legislature   has   no  power   to 

release  taxes, 

8.  Real    estate   includes    what. 

9.  Eminent      domain  —  Taxation 

not. 

10.  Money. 

11.  Farm  products. 

12.  State   releases   mineral   right 

but  not  taxes. 

13.  Federal   Constitution  not  vio- 

lated   by    Delinquent     Tax 
Act. 
L4.  Tax  laws  construed  liberally. 

15.  Due  course  of  law. 

16.  Official  duty  can  not  be  dele- 

gative. 

17.  Partition    —    Allowance     for 

taxes  paid. 

18.  Property    bought    in    held    in 

trust  when. 

19.  Road     and     bridge   a   county 

tax. 

20.  Special    fund    not    to    be    di- 

verted. 

21.  Dedication. 


Sec. 

22.  Telegraph     company — Consti- 

tutional law. 

23.  Deed   of   Trust   providing   for 

payment  of  taxes. 

24.  Payment  will  be  enforced. 

25.  Nonpayment     of     taxes — Pre- 

sumption that  right  has  re- 
verted to  State. 

26.  Rights  not  affected  by  failure 

to  pay  taxes  when. 

27.  Where  mortgagee  pays,  what 

rights  does  he  have. 

28.  Sale  of  one  tract  to  pay  taxes 

on  another. 

29.  Disqualification  of  judge. 

30.  Courts  of   equity   should   not, 

except  on  clearest  grounds, 
interfere  with  collection  of 
taxes. 

31.  Where   no   provision   is   made 

as  to  source  from  which 
revenue  is  to  be  derived. 

32.  Taxable  when. 

33.  Vested  rights  in  taxes. 

34.  De  facto  officers. 

35.  State  shall  have  judgment,  ex- 

cept when. 

36.  Tenant  may  purchase  tax  ti- 

tle. 

37.  Timber  on  public  land. 

38.  Where  tax  can  be  divided. 

39.  Detached      territory,    liability 

for  taxes. 


-Definition  of. 
and  "taxation,' 


as  used  in  the 


§  1.     "Taxes"  refer  to  what- 

The  words  "tax,"  "taxes' 
constitution   without   some   qualifying  word  in   reference   to 
property,   apply   to   ad   valorem   taxes.     Those  words   when 


42  Taxation  in  Texas. 

found  in  article  2  refer  to  such  taxation  as  the  rule  of  equality 
and  uniformity  can,  under  well-settled  and  long-recognized 
rules,  be  applied  to. 

Taxes  for  local  improvements  in  a  city,  usually  termed 
"assessments,"  are  not  required  to  the  rule  requiring  equality 
and  uniformity.  (Following  Roundtree  v.  City  of  Galveston,  42 
Tex.  626.)     Taylor  v.  Boyd,  62>  Tex.  534. 

Taxes  are  defined  to  be  burthens,  or  charges,  imposed  by 
"the  legislative  power  of  a  state  upon  persons   or  property," 
to  "raise  money  for  public  purposes."    It  is  a  power  inherent 
in  sovereignty,  and  without  which  constitutional  government 
cannot  exist.     It  is  vested  in  the  Legislature  by  the  general 
grant  of  the  legislative  power  whether  specially  enumerated 
in  the  Constitution  among  the  powers  to  be  exercised  by  it 
or  not.    The  constitutional  provisions  in  reference  to  it,  there- 
fore, are  more  usually  extended  and  understood  as  limitations 
and  restrictions  upon  its  exercise,  than  as  the  direct  grant  of 
the  power  to  the  Legislature.    That  a  power  so  pervading  in 
extent  which  may  be  made  to  bear  upon  any  species  of  prop- 
erty,  and   affect   every   occupation   and   industry   of   society, 
should  be  guarded  by  just  and  reasonable  constitutional  re- 
strictions can  not  be    doubted.    And    that    the  Legislature,    in 
its  exercise  of  this  power,  can  not  transcend  these  restrictions 
will  be  denied  by  no  one.     It  is  equally  obvious,  when  taxes 
are  levied,  the  citizen  is  liable  for  their  payment  at  the  time 
and  in  the  manner  required  and  provided  by  the  law  authoriz- 
ing their  assessment  and  collection. 

An  inspection  of  the  Constitution  of  this  State  shows  that 
the  power  of  taxation,  in  its  all-pervading  and  unlimited  force, 
has  not  been  committed  to  legislative  discretion,  without  guid- 
ance or  restriction.  The  subjects  of  taxation,  as  is  manifest 
by  these  restrictive  provisions,  are,  primarily,  property  and 
persons,  and  may  embrace  incomes,  occupations  and  profes- 
sions, not  including,  however,  either  agricultural  or  mechan- 
ical pursuits.  Taxes  levied  by  the  State  on  these  subjects,  for 
general  revenue,  however,  must  be  equal  and  uniform 
throughout  the  State.  All  the  property  in  the  State,  except 
such  as  may  be  exempt  as  provided  in  the  Constitution,  shall 
be  taxed  in  proportion  to  its  value,  to  be  ascertained  as  di- 
rected by  law.     The    annual    assessment  upon    landed  property 


General  Provisions,  Definitions^  Etc.  43 

shall  be  a  lien  on  the  property,  and  interest  shall  run  thereon 
upon  each  year's  assessment.  Such  property  shall  be  sold  for 
the  taxes  thereon  only  under  a  decree  of  a  court  of  competent 
jurisdiction.  Provision  for  the  condemnation  and  sale  of  all 
lands  for  the  taxes  due  thereon  was  authorized  to  be  made 
by  the  first  Legislature,  and  every  five  years  thereafter,  of  all 
lands,  the  taxes  upon  which  shall  not  be  paid  to  that  date. 
(Constitution,  Article  12,  Sections  19-22.) 

We  think  it  quite  evident,  from  these  constitutional  pro- 
visions, that  taxes  on  landed  property  were  intended  to  be  a 
specific  charge  upon  the  land  upon  which  they  are  assessed, 
and  that  such  property  cannot  be  sold  for  their  payment,  ex- 
cept by  proceeding  in  accordance  with  provisions  made  by 
the  Legislature  for  their  condemnation  and  sale  for  the  taxes 
due  thereon.  To  enforce  the  payment  of  taxes  due  on  land, 
by  its  sale  under  execution  on  a  judgment  in  personam,  in- 
stead of  by  a  proceeding  in  rem,  subjecting  it  to  condemnation 
and  sale  would  be,  plainly,  in  violation  of  the  object  and  pur- 
poses for  which  these  constitutional  provisions  were  evidently 
intended.     Clegg  v.  State,  42  Tex.  pp.  608  and  609. 

The  essentials  of  a  valid  tax  are:  (1)  a  levy  by  compe- 
tent legislative  authority,  and  (2)  a  valid  assessment  of  the 
property  upon  which  such  tax  is  levied  by  the  officer  or  trib- 
unal to  whom  this  duty  is  committed  by  law.  George  v.  Dean, 
47  T.  72,. 

"Taxes  are  burdens  or  charges  imposed  by  the  Legislature 
on  persons  or  property  to  raise  money  for  public  purposes." 
City  of  Austin  vs.  Nalle,  120  S.  W.  996. 

§  2.     Must  Be  Equal  and  Uniform. 

Taxation  and  Revenue — Taxation  shall  be  equal  and  uni- 
form. All  property  in  this  state,  whether  owned  by  natural 
persons  or  corporations,  other,  than  municipal,  shall  be  taxed 
in  proportion  to  its  value,  which  shall  be  ascertained  as  may 
be  provided  by  law.  The  legislature  may  impose  a  poll  tax. 
It  may  also  impose  occupation  taxes,  both  upon  natural  per- 
sons and  upon  corporations,  other  than  municipal,  doing  any 
business  in  this  state.  It  may  also  tax  incomes  of  both  natural 
persons  and  corporations,  other  than  municipal,  except  that 
persons  engaged  in  mechanical  and  agricultural  pursuits  shall 
never  be  required  to  pay  an  occupation  tax;    provided,  that 


44  Taxation  in  Texas. 

two  hundred  and  fifty  dollars  worth  of  household  and  kitchen 
furniture,  belonging  to  each  family  in  this  state,  shall  be  ex- 
empt from  taxation,  and  provided  further,  that  the  occupation 
tax  levied  by  any  county,  city  or  town,  for  any  year,  on  per- 
sons or  corporations  pursuing  any  profession  or  business  shall 
not  exceed  one-half  of  the  tax  levied  by  the  state  for  the  same 
period  on  such  profession  or  business.  St.  Const.,  Sec.  1, 
Art.  VIII. 

§  3.     Nature  and  extent  of  power. 

The  power  of  a  state  as  to  mode,  form  and  extent  of  taxation 
of  lands  within  its  jurisdiction  is  limited  only  by  the  Federal 
Constitution.    Hutchison  v.  Storrie,  48  S.  W.  785. 

The  State  tax  on  property,  exclusive  of  the  tax  necessary  to 
pay  the  public  debt  and  of  the  taxes  provided  for  the  benefit  of 
the  public  schools,  shall  never  exceed  thirty-five  cents  on  the 
one  hundred  dollars  valuation,  and  no  county,  city  or  town  shall 
levy  more  than  twenty-five  cents  for  city  or  county  purposes, 
and  not  exceed  fifteen  cents  for  roads  and  bridges  on  the  one 
hundred  dollars  valuation,  except  the  payment  of  debts  incurred 
prior  to  the  adoption  of  the  amendment,  September  25,  A.  D. 
1883;  and  for  the  erection  of  public  buildings,  streets,  sewers, 
water-works  and  other  permanent  improvements,  not  to  exceed 
twenty-five  cents  on  the  one  hundred  dollars  valuation  in  any 
one  year,  and  except  as  is  in  this  constitution  otherwise  provided ; 
and  the  legislature  may  also  authorize  an  additional  annual 
ad  valorem  tax  to  be  levied  and  collected  for  the  further  main- 
tenance of  the  public  roads ;  provided,  that  a  majority  of  the 
qualified  property  tax  paying  voters  of  the  county  voting  at  an 
election  to  be  held  for  that  purpose,  shall  vote  such  tax  not  to 
exceed  fifteen  cents  on  the  one  hundred  dollars  valuation  of  the 
property  subject  to  taxation  in  such  county.  And  the  legislature 
may  pass  local  laws  for  the  maintenance  of  public  roads  and 
highways  without  the  local  notice  required  for  special  or  local 
laws.    St.  Const.  Sec.  9,  Art.  VIII. 

§  4.     All  property  liable  for  taxes. 

All  real  and  personal  property  held  or  owned  b(y  any  person 
in  this  state  shall  be  liable  for  all  state  and  county  taxes  due  by 
the  owner  thereof,  including  taxes  on  real  estate,  personal  prop- 
erty and  poll  tax;  and  the  collector  of  taxes  shall  levy  on  any 


General  Provisions,  Definitions,  Etc.  45 

personal  property  or  real  property  to  be  found  in  his  county  to 
satisfy  all  delinquent  taxes,  any  law  to  the  contrary  notwith- 
standing.    (Acts  1879,  p.  46.) 

(1)  As  to  the  liability  of  exempt  property  to  seizure  and  sale 
for  delinquent  poll  tax,  see  Ring  vs.  Williams,  35  S.  W.  R.  733 ; 
13  Tex.  Civ.  App.  609. 

A  state  may  tax  all  property,  real  and  personal,  within  its 
jurisdiction,  irrespective  of  the  domicile  of  the  owner.  State 
V.  Fidelity  and  Deposit  Co.  of  Maryland,  80  S.  W.  54;  35  Tex. 
Civ.  App.  214;  McCullough  v.  Maryland,  4  Wheat.  316;  Tappon 
V.  Mer.  Nat.  Bank,  19  Wall.  490;  Coe  v.  Errol,  116  U.  S.  517; 
Pullman  Car  Co.  v.  Pennsylvania,  141  U.  S.  18;  Saznngs  &  Loan 
Asso.  V.  Multnomah  Co.,  169  U.  S.  426 ;  New  Orleans  v.  Stemple, 
175  U.  S.  309;  Bristol  v.  Washington  Co.,  177  U.  S.  144;  Piano 
and  Organ  Co.  v.  City  of  Dallas,  61  S.  W.  942. 

§  5.     How  levied  and  collected. 

Taxes  shall  be  levied  and  collected  by  general  laws  and  for 
public  purposes  only.    St.  Const.  Sec.  3,  Article  VIII. 

§  6.     Legislative  power  and  authority. 

The  legislature,  subject  to  the  constitutional  provision,  has 
authority  to  grant  power  to  a  county  to  issue  bonds  for  the  con- 
struction of  bridges,  court  house  or  jail,  and  to  make  provision 
for  the  taxes,  to  pay  the  interest  and  create  the  sinking  fund 
required.    Mitchell  County  v.  Bank,  91  T.  361,  43  S.  W.  880. 

The  power  to  tax  corporations  and  corporate  property  shall 
not  be  surrendered  or  suspended  by  act  of  the  legislature,  by 
any  contract  or  grant  to  which  the  state  shall  be  a  party.  Const. 
Sec.  4,  Art.  VIII. 

What  property  shall  be  embraced  within  a  tax  di'strict,  and 
whether  it  shall  be  taxed  for  municipal  purposes  is  a  political 
question,  to  be  determined  by  the  legiislature.  So  long  as  the 
legislation  in  form  and  substance  conforms  to  the  constitution, 
and  is  not  colorable  merely,  but  is  confined  to  the  enactment  of 
what  is  in  its  nature  strictly  a  tax  law,  and  so  long  as  no  con- 
stitutional limitations  are  exceeded,  or  the  constitutional  right  of 
the  citizen  violated  in  the  directions  prescribed  for  enforcing  the 
tax,  the  legislature  is  of  supreme  authority,  and  the  courts  as  well 
as  others  must  obey.  Taxes  must  be,  and  often  are,  op- 
pressive to  the  persons  and  corporations  taxed.     They  may  ap- 


46  Taxation  in  Texas. 

pear  to  the  judicial  mind  unjust,  and  even  unnecessary,  but  this 
can  constitute  no  reason  for  judicial  interference.  Kettle  v.  City 
of  Dallas,  80  S.  W.  877;  35  Tex.  Civ.  App.  6Z2',Bmvk  v.  Fenno, 
8  Wall.  533 ;  Dazidson  v.  New  Orleans,  96  U.  S.  97 ;  Merwether 
V.  Garrett,  102  U.  S.  472. 

In  construing  a  legislative  act  which  incorporated  within  city 
limits  property  used  exclusively  for  rural  purposes,  it  will  be 
conclusively  presumed,  on  a  question  of  taxation,  that  the  legis- 
lature in  passing  the  act,  determined  with  a  view  safely  to  the 
public  good  the  benefits  to  accrue  to  the  public  and  to  the  property 
owner.  It  would  be  a  usurpation  of  power  by  the  judiciary  were 
it  to  assume  the  right  to  revise  the  legislative  action  because  of 
the  inequality  of  the  benefits  resulting  from  municipal  taxation 
of  such  property.    N orris  z'.  City  of  Waco,  57  Tex.  635. 

The  specification  of  the  objects  and  subjects  of  taxation  shall 
not  deprive  the  legislature  of  the  power  to  require  other  subjects 
or  objects  to  be  taxed,  in  such  manner  as  may  be  consistent 
with  the  principles  of  taxation  fixed  in  this  constitution.  St. 
Const.  Sec.  17,  Art.  VIII. 

§  7.    LfCgislature  hzis  no  power  to  release  taxes. 

The  legislature  shall  have  no  power  to  release  the  inhabitants 
of,  or  property  in,  any  county,  city  or  town,  from  the  payment 
of  taxes  levied  for  state  or  county  purposes,  unless  in  case  of  great 
public  calamity  in  any  such  county,  city  or  town,  when  such  re- 
lease may  be  made  by  a  vote  of  two-thirds  of  each  house  of  the 
legislature.     Sec.  10,  Art.  VIII.  St.  Const. 

§  8.     Real  estate  includes  v^hat? 

The  term  "real  estate"  or  property  shall  be  construed  to  in- 
clude lots,  lands  and  all  buildings  or  machinery  and  structures 
of  every  kind  erected  upon  and  affixed  to  the  same.  Sayles 
R.  S.  495. 

•  For  the  purpose  of  taxation  real  property  shall  include  all 
lands  within  the  state  and  all  buildings  and  fixtures  thereon, 
and  appertaining  thereto  except  such  as  are  expressly  exempted 
by  law.  (Acts  1897,  p.  132,  Sec.  1.)  See  Hernandez  v.  City  of 
Sam,  Antonio,  39  S.  W.  R.  1022. 

§  9.     Eminent  domain — Taxation  not. 

The  Constitutional  inhibition  against  taking  private  property 
for  public  use  without  compensation  to  the  owner,  has  reference 


General  Provisions,  Definitions,  Etc.  47 

solely  to  the  taking  of  private  property  for  public  use  under 
the  right  of  eminent  domain.  When  private  property  is  taken 
under  the  taxing  power,  the  tax-payer  receives  his  just  com- 
pensation in  the  protection  which  the  government  affords  to 
his  life,  liberty  and  property,  and  in  the  increased  value  of  his 
possessions  resulting  from  the  use  to  which  the  government 
applies  the  money  raised  by  the  tax.  Norris  v.  City  of  Waco, 
57  Tex.  635. 

§  10.    Money. 

The  revised  statutes  of  tax  under  the  head  of  taxation  con- 
tain the  following  definition  of  terms: 

The  term  "money"  or  "moneys"  wherever  used  in  this  title 
shall  besides  money  or  moneys  include  every  deposit  which  any 
person  owning  the  same  or  holding  in  trust  and  residing  in  this 
state  is  entitled  to  withdraw  in  money  on  demand.  R.  S..  Art. 
5064. 

§11.     Farm  products. 

Farm  products  in  the  hands  of  the  producer  and  family  sup- 
plies for  home  and  farm  use,  are  exempt  from  all  taxation 
until  otherwise  directed  by  a  two-thirds  vote  of  all  the  members 
elect  to  both  houses  of  the  legislature.  Sec.  19,  Art.  VIII,  St. 
Const. 

§  12.    State  releases  mineral  right  but  not  taxes. 

The  State  of  Texas  hereby  releases  to  the  owner  or  owners 
of  the  soil,  all  mines  and  minerals  that  may  be  on  the  same,  sub- 
ject to  taxation  as  other  property.    St,  Const.  Sec.  7,  Art.  14. 

§  13.     Federal  constitution  not  violated  by  delinquent  tax  act. 

The  provision  of  the  statute  for  the  addition  of  costs  and  penal- 
ties in  case  of  a  sale  of  land  for  delinquent  taxes,  applying  to  all 
citizens  alike,  does  not  violate  the  fourteenth  amendment  of  the 
Federal  Constitution,  securing  to  every  citizen  equality  before  the 
law.    Masterson  vs.  State,  \7  T.  C.  A.  91 ;  42  S.  W.  1003. 

§  14.    Tax  laws  construed  liberally. 

"Revenue  Laws  are  always  construed  most  liberally,  to  effect 
the  end  and  aim  of  supplying  the  Government  the  means  of  sus- 
taining its  existence.    Aulanier  v.  The  Governor,  1  Tex.  665. 

While  the  law  does  not  countenance  unlawful  exaction  in  the 
names  of  taxes,  nevertheless,  when  they  are  brought  into  litiga- 


48  Taxation  in  Texas. 

tion,  it  will  afford  eviery  lawful  remedy  to  the  government,  or  mu- 
nicipality necessary  to  enforce  such  taxes  as  are  shown  to  be  le- 
gally due.    Lufkin  v.  City  of  Galveston,  73  Tex.  343. 

"Where  lien  for  taxes  is  sought  to  be  established  by  suit  a 
more  liberal  rule  applies  than  in  a  sale  of  the  land  under  the  tax 
rolls."  Haynes  v.  State,  99  S.  W.  405,  44  Tex.  Civ.  App.  492 ; 
Cooper  Grocery  Co.  v.  City  of  Waco,  71  S.  W.  619;  City  of  Rock- 
land V.  Aimer,  24  Att.  949. 

§  15.     Due  course  of  law. 

While  the  enforcement  of  a  valid  tax,  by  whatever  method, 
does  not  constitute  a  taking  of  property  without  due  process  of 
law  in  the  sense  of  the  constitution,  and  is  not  a  taking  of  private 
propertjy  for  public  use  within  the  meaning  of  that  instrument, 
it  is  not  within  the  power  of  the  state  to  collect  under  arbitrary 
and  ex  pvarte  proceedings,  as  a  tax,  a  sum  of  money  which  the 
statute  declares  shall  be  paid  by  the  occupier  of  school  lands  as 
rent.     McFadden  v.  Longhanv,  58  Tex.  579. 

"Where  judgment  confirming  a  tax  on  lands  and  foreclosing 
the  state's  lien  thereon  is  obtained  in  pursuance  of  the  statute 
for  the  purpose  of  foreclosing  liens  for  taxes  on  lands  of  un- 
known owners,  and  the  statutory  notice  to  the  owners  is  appro- 
priate to  the  nature  of  the  case,  the  judgments  will  not  be  con- 
sidered to  deprive  the  owners  of  their  property  without  due  pro- 
cess of  law."     Young  v.  Jackson,  110  S.  W.  74. 

§  16.     Official  duty  cannot  be  delegative. 

"Where  the  law  imposes  on  an  officer  the  performance  of  acts 
as  a  part  of  his  official  duties,  the  commissioners'  court  of  the 
county  is  without  authority  to  contract  with  any  other  i>erson  to 
perform  such  services."  Stringer  v.  Franklin  County  123  S.  W. 
1168. 

§  17.     Partition — Allowance  for  taxes  paid. 

"Payment  by  one  of  the  remaindermen  of  taxes  imposed  on  the 
land  during  the  life  of  the  life  tenant  may  be  under  such  circum- 
stances that  the  interest  of  the  other  remaindermen  may  be 
charged  with  their  proportion  thereof  on  partition.  Mateer  v. 
Jones,  102  S.  W.  734. 

§  18.     Property  bought  in  held  in  trust — When. 

"Where  a  city  acquired  title  to  plaintiff's  property  under  a  sale 
for  taxes,  and  defendant,  at  the  request  of  plaintiffs,  paid  the 


General  Provisions,  Definitions,  Etc.  49 

amount  due  and  took  a  deed  to  the  property  from  the  city,  where 
he  had  agreed  with  plaintiffs  to  have  it  deeded  to  them,  he  holds 
the  property  in  trust  for  the  plaintiffs,  and  they  are  entitled  to 
have  the  title  decreed  in  them  upon  payment  to  defendant  of  the 
amount  paid  by  them  to  the  city."  Openshaw  v.  Rickmeyer,  102 
S.  W.  467 ;  45  Tex.  Civ.  App.  508. 

§  19.    Road  and  bridge  a  county  tax. 

The  road  and  bridge  tax  authorized  and  provided  for  by 
Sec.  46,  Art.  12  of  the  Constitution  of  1869,  and  Sec.  5,  act  of 
April  22,  1871,  is  a  County  and  not  a  State  tax.  Clegg  v.  Galves- 
ton Ca.,  1  W.  W.  Civ.  62. 

§  20.     Special  fund  not  to  be  diverted. 

The  Legislature  shall  not  have '  power  to  borrow,  or  in  any 
manner  divert  from  its  purpose,  any  special  fund  that  may,  or 
ought  to,  come  into  the  treasury ;  and  shall  make  it  penal  for  any 
person  or  persons  to  borrow,  withhold  or  in  any  manner  to  divert 
from  its  purpose  any  special  fund  or  any  part  thereof.  St.  Const. 
Sec.  7,  Art.  VIII. 

A  fund  raised  for  a  specific  purpose  is  priorily  dedicated  to 
that  purpose.    Pendleton  v.  Ferguson,  89  S.  W.  761 ;  99  Tex.  296. 

§  21.     Dedication. 

"Where  there  was  a  designation  of  a  park  on  a  plat  of  an  addi- 
tion to  a  city  and  a  sale  of  lots  by  reference  to  the  plat,  the  fact 
that  the  one  making  the  addition  rendered  the  park  property  for 
taxes  and  paid  taxes  thereon  did  not  interfere  with  the  dedica- 
tion." Sanborn  v.  City  of  Atnarillo,  93  S.  W.  473 ;  42  Tex.  Civ. 
App.  115. 

§  22.    Telegraph  company — Constitutional  law. 

Where  the  statute  required  a  statement  to  be  made  by  the  chief 
manager  of  a  telegraph  company  of  the  entire  number  of  the  full- 
rate  and  half-rate  messages  of  the  company,  and  that  thus  the 
amount  of  taxes  due  should  be  ascertained,  and  a  tax  upon  cer- 
tain of  the  messages  was  held  unconstitutional,  but  the  law  con- 
tained no  direction  requiring  a  discrimination  in  the  report  be- 
tween the  messages  that  could  be  legally  taxed  and  those  that 
could  not,  the  entire  law  was  inoperative  and  void.  W.  U.  T.  Co. 
V.  The  State  of  Texas,  62  Tex.  630. 


50  Taxation  in  Texas. 

§  23.     Deed  of  trust  providing  for  payment  of  taxes. 

"Where  a  deed  of  trust  provided  that  if  the  grantor  should 
fail  to  pay  the  State,  county  or  city  taxes  on  the  property  accord- 
ing to  the  tax  rolls  in  the  hands  of  the  tax  collectors,  the  whole 
of  said  indebtedness  remaining  unpaid,  at  the  option  of  the  hold- 
er, should  become  immediately  payable,  such  clause  referred  to 
taxes  which  might  remain  unpaid  at  any  time  before  the  princi- 
pal debt  became  due,  and  was  not  limited  to  taxes  due  prior  to 
the  execution  of  the  deed."    Clark  v.  Elmendorf,  78  S.  W.  538. 

§  24.     Payment  will  be  enforced. 

While  the  law  does  not  countenance  unlawful  exactions  in  the 
name  of  taxes,  nevertheless,  when  they  are  brought  into  litiga- 
tion, it  will  afford  every  lawful  remedy  to  the  Government  or 
municipality  necessary  to  enforce  such  taxes  as  are  shown  to  be 
legally  due.  Liifkin  v.  City  of  Galveston.  11  S.  W.  342;  73  Tex. 
334. 

§  25.     Non-payment  of  taxes  presumption  that  right  has  re- 
verted to  State. 

Non-payment  of  taxes  on  any  claim  of  title  to  land  dated  prior 
to  the  13th  day  of  November,  1835,  not  recorded  or  archived,  as 
provided  iii  Sec.  2,  by  the  person  or  persons  so  claiming,  or  those 
under  .whom  he  or  they  so  claim,  from  that  date  up  to  the  date 
of  the  adoption  of  this  constitution,  shall  be  held  to  be  a  presump- 
tion that  the  right  thereto  has  reverted  to  the  State,  and  that  said 
claim  is  a  stale  demand,  which  presumption  shall  only  be  rebutted 
bv  payment  of  all  taxes  on  said  lands,  State,  county  or  city  or 
tow-n,  to  be  assessed  on  the  fair  value  of  such  lands  by  the  comp- 
troller, and  paid  to  him,  without  any  commutation  or  deduction 
for  any  part  of  the  above  period.     St.  Const.  Sec.  3,  Art.  13. 

§  26.     Rights  not  affected  by  failure  to  pay  taxes — ^When. 

"The  rights  of  one  having  the  legal  title  to  land  not  in  the  ad- 
verse possession  of  another,  is  not  affected  by  his  mere  non-claim 
for  many  years,  or  failure  to  pay  taxes,  or  the  payment  of  taxes 
by  another  claiming  under  a  void  deed,  though  these  facts  suggest 
that  the  parties  may  have  supposed  that  the  deed  disposed  of  the 
property."    Hunter  v.  Hodgson,  95  S.  W.  637. 

§  27.    Where  mortgagee  pays,  what  rights  does  he  have. 

"Where  a  mortgagee  paid  taxes  on  land  in  order  to  protect  his 
security,  he  thereby  acquired  no  right  of  action  against  the  own- 


General  Provisions,  Definitions,  Etc.  51 

ers  of  the  land  to  recover  the  amount  so  paid,  but  was  only  en- 
titled to  add  such  amount  to  the  mortgage  debt  and  enforce  his 
claim  for  reimbursement  as  a  part  of  the  foreclosure  proceed- 
ings.'^   Stone  V.  Tilley,  101  _S.  W.  201 ;  100  Tex.  487. 

§  28.     Sale  of  one  tract  to  pay  taxes  on  another. 

"Under  Acts  1876,  p.  262,  authorizing  the  collector  to  levy 
upon  and  seize  an^y  property  of  the  taxpayer,  for  the  purpose  of 
collecting  the  taxes  due,  a  levy  and  sale  of  one  survey  of  land, 
not  homestead  or  exempt,  may  be  made,  in  order  to  satisfy  the 
taxes  due  on  another  survey."  Brymer  v.  Taylor,  23  S.  W.  635 ; 
5  Tex.  Civ.  App.  103. 

§  29.     Disqualification  of  judge. 

"A  judge  of  the  court  of  civil  appeals  who  is  a  resident  tax- 
payer of  the  city,  is  'interested  in  the  question  to  be  determined' 
in  a  suit  brought  by  other  taxpayers  to  restrain  collection  of  a 
tax,  etc.,  within  acts  April  13,  1892,  p.  30,  Sec.  27,  and  is  therefore 
not  eligible  to  sit  in  the  case. 

"On  rehearing." 

"Act  Called  Sess.  Leg.  1892,  p.  30,  Sec.  27,  declaring  that,  when 
the  court  of  civil  appeals  or  'any  two  of  its  members'  shall  be 
disqualified  to  try  a  case,  that  fact  shall  be  certified  by  the  gov- 
ernor, who  shall  proceed  to  appoint  special  judges,  does  not  con- 
flict with  Const.  Art.  5,  Sec.  11,  providing  for  such  certification 
when  'any  member'  is  disqualified,  as  under  the  liberal  provis- 
ions of  Art  5,  Sec.  6,  the  Legislature  is  permitted  to  confer  such 
jurisdiction  on  the  court  as  it  may  deem  best ;  and  the  fact,  there- 
fore, that  one  member  is  alone  disqualified  to  try  a  case,  does  not 
prevent  the  other  members  from  proceeding  therewith."  Nolle 
V.  City  of  Austin,  21  S.  W.  375. 

"Const.  Art.  5,  Sec.  11,  and  Rev.  Stat.  1895,  Art.  1068,  dis- 
qualify a  district  judge  in  any  case  whereili  he  may  be  interested. 
Held,  that  where  a  district  judge  was  not  interested  'as  a  party' 
to  a  suit  against  a  city  to  restrain  the  collection  of  city  taxes,  so 
that  the  judgment  could  not  in  any  manner  afifect  him,  he  was 
not  disqualified,  though  he  was  a  taxpayer  of  the  city,  and  was 
incidently  interested  in  the  question  at  issue."  Nalle  v.  City  of 
Austin,  93  S.  W.  141 ;  41  Tex.  Civ.  App.  423. 


52  Taxation  in  Texas. 

A  district  judge  who  is  a  taxpayer  in  a  city  is  not  so  interested 
in  an  action  to  recover  a  judginent  upon  the  obligation  of  a  city 
as  to  disqualify  him  on  the  trial  of  the  case.  Thornburgh  v.  City 
of  Tyler,  43  S.  W.  1054;  16  Tex.  Civ.  App.  439, 

§  30.     Courts  of  equity  should  not,  except  on  clearest  grounds, 
interfere  with  collection  of  taxes. 

A  question  of  great  importance  is  presented  in  the  case,  which 
we  are  not  called  on  to  decide,  and  simply  call,  the  attention  of  the 
profession  to  it  as  a  question  which  we  believe  to  be  open  in  this 
State.  In  Dodd  et  al.  v.  the  City  of  Hartford,  25  Conn.  232,  it 
was  decided  that  a  court  of  equity  would  not,  except  on  the  clear- 
est grounds,  interfere  with  the  speedy  collection  of  public  taxes. 
And  in  the  case  of  Lezvis  O.  Wilson  v.  the  Mayor,  Aldermen,  and 
Commonalty  of  the  City  of  New  York,  et  al.,  4  N.  Y.,  E.  D. 
Smith  675,  it  was  held  that  when  no  legal  right  exists  to  impose  a 
tax,  if  the  same  be  collected  by  distress  and  sale  of  goods,  or  if, 
upon  the  levying  of  a  warrant,  the  tax  is  paid  to  save  the  prop- 
erty, the  mone;y  may  be  recovered  back  of  the  body  who  receives 
it  from  the  collector.  "Accordingly,  held,  that  as  a  party  ag- 
grieved has  remedies  at  law,  a  court  acting  as  a  court  of  equity 
has  no  jurisdiction  to  restrain  by  injunction  the  collection  of  a 
tax  unlawfully  assessed  upon  personal  estate."  The  same  rule 
has  been  laid  down  in  Ohio  in  a  number  of  cases. 

Yet  it  js  true  that  the  Supreme  Court  of  the  United  States 
have  held  a  contrary  doctrine  in  the  case  of  Dows  v.  the  City  of 
Chicago,  11  Wallace  108.  And  other  respectable  authorities  may 
be  found  to  the  same  point ;  yet  a  majority  of  the  court  believe 
that  the  doctrine  as  recognized  in  Connecticut,  that  courts  of 
equity  ought  not,  except  upon  the  clearest  grounds,  to  interfere 
with  a  speedy  collection  of  public  taxes,  lays  down  the  correct 
rule,  and  one  which  ought  to  be  everywhere  recognized,  as  great 
mischief  to  the  public  interest,  and  detriment  to  the  public  service, 
would  doubtless  grow  out  of  a  practice,  if  adopted  by  courts  of 
equity,  of  interfering  by  injunction  with  the  collection  of  the  pub- 
lic revenue,  if  not  governed  by  the  strictest  rules  of  equity  prac- 
tice; and  it  is  difficult  to  conceive  why  a  court  of  equity  should 
interfere  to  redress  the  real  or  supposed  wrongs  of  an  individual 
to  whom  the  courts  of  law  are  open,  and  who  has  a  clear  legal 
remedy  against  an  officer  who  enforces  the  collection  of  an  un- 
constitutional or  .illegal  tax."  Kinney  v.  Zimplenum,  36  Tex.  571. 


General  Provisions,  Definitions,  Etc.  53 

§  31.     Where  no  provision  is  made  as  to  source  from  which 
revenue  is  to  be  derived. 

Whenever  a  tax  is  authorized  by  law,  and  no  special  provision 
is  made  as  to  the  source  from  which  the  revenue  is  to  be  derived, 
the  law  implies  that  the  tax  shall  be  levied  upon  all  property  sub- 
ject to  general  taxation,  and  collected  as  other  taxes.  State  v. 
Bremond,  38  Tex.  116. 

§  32.    Taxable  when. 

One  locating  two  surveys  under  a  confederate  land  scrip  can 
not  demand  a  patent  until  the  land  commissioner  has  selected  one 
of  them  for  the  school  fund,  and  hence  until  then  his  survey  is 
not  taxable.  Ahney  v.  State,  47  S.  W.  1043 ;  20  Tex.  Civ.  App. 
101. 

§  33.     Vested  rights  in  taxes. 

The  repeal  of  former  tax  laws  did  not  relinquish  the  right  of 
the  State  to  recover  taxes  previously  levied  but  not  collected. 
Clegg  V.  State,  42  Tex.  605 ;  Meyer's  Vested  Rights,  1447-1448. 

§  34.     De  facto  officers. 

Although  the  Constitution,  by  its  adoption,  3d  December,  1869 
became  operative,  yet  the  de  facto  ministerial  and  executive  offi- 
cers exercising  authority  and  deriving  color  of  authority  from 
the  pre-existing  provisional  government  were  not  superseded  un- 
til the  organization  of  the  State  government ;  and  the  assessment 
of  taxes  made  for  1870  by  the  assessor  and  collector  appointed  by 
the  provisional  government  was  legal.  Clegg  v.  State,  42  Tex. 
605. 

§  35.     State  shall  have  judgment,  except  when. 

In  all  suits  for  taxes  due  the  defendant  shall  be  entitled  to  cred- 
its he  can  show  due  him  for  any  year  or  number  of  years  for 
which  he  may  be  able  to  produce  receipts  but  the  State  shall  have 
judgment  and  foreclosure  of  tax  lien  for  any  year  or  years  sued 
for  when  the  defendant  can  not  offer  receipts  or  other  positive 
proof  showing  the  payment  of  the  claim  for  taxes.  Act  1897,  p. 
139,  Sec.  15.    Sayles  R.  S.,  Art.  5232. 

§  36.     Tenant  may  purchase  tax-title. 

A  tenant  may  purchase  the  land  at  tax  sale  and  set  up  the 
title  so  acquired  against  his  landlord  without  coming  within  the 


54  Taxation  in  Texas. 

rule  prohibiting  a  tenant  from  denying  his  landlord's  title.  Crosby 
V.  Bonnozvsky,  Vol.  69,  S.  W.  Reporter,  page  212;  29  Tex.  Civ. 
App.  455. 

§  37.     Timber  on  public  land. 

An  Act  to  amend  Article  5087,  of  Chapter  2,  Title  104,  of  the 
Revised  Civil  Statutes  of  1895. 

Section  1.  Be  it  enacted  by>  the  Legislature  of  the  State  of 
Texas:  That  Article  5087  of  the  Revised  Civil  Statutes  of 
1895  be  amended  to  read  as  follows : 

Article  5087.  Property  held  under  a  lease  for  a  term  of  three 
years  or  more,  or  held  under  a  contract  for  the  purchase  thereof, 
belonging  to  this  State,  or  that  is  exempt  by  law  from  taxation  in 
the  hands  of  the  owner  thereof,  shall  be  considered  for  all  the 
purposes  of  taxation  as  the  property  of  the  person  so  holding  the 
same,  except  as  otherwise  specially  provided  by  law.  Timber  held 
by  persons  or  corporations  heretofore  or  hereafter  purchased  from 
the  State  under  the  various  laws  for  that  purpose,  shall  likewise 
be  subject  to  assessment  for  taxes,  and  the  value  thereof  for  taxa- 
tion shall  be  ascertained  as  the  value  of  other  property  is  ascer- 
tained. And  should  the  owner  of  such  timber  fail  or  refuse  to 
pay  the  taxes  assessed  against  it,  the  same  shall  be  sold  for  the 
taxes  thereon,  as  provided  in  this  title  for  the  sale  of  personal 
property  for  taxes,  provided  the  same  can  be  found  by  the  col- 
lector, but  if  the  timber  can  not  be  found,  then  the  collector  shall 
collect  the  taxes  due  as  the  taxes  on  other  personal  property  are 
collected ;  provided  further,  that  the  Commissioner  of  the  General 
Land  Office  shall  furnish  by  the  first  of  January  each  year  here- 
after to  the  various  commissioners  courts  and  the  tax  assessors  of 
the  State  of  Texas  a  full  and  complete  li'st  of  all  timber  sold  by 
the  State  belonging  to  the  school  funds,  giving  the  number  of 
acres,  price  and  to  whom  sold,  in  the  respective  counties  where 
the  timber  so  sold,  is  situated.  In  case  of  the  sale  of  such  timber 
for  taxes  as  herein  provided  the  purchaser  shall  take  and  hold  the 
same  under  the  same  terms  and  conditions  as  the  original  pur- 
chaser thereof  from  the  State.     Act  1905,  p.  72. 

§  38.     Where  tax  can  be  divided. 

When  the  legal  tax  is  clearly  susceptible  of  being  readily  dis- 
tinguished from  the  illegal  tax,  recovery  can  be  had  for  the  legal 
tax.    Davis  zk  Burney,  58  Tex.  569;  Dean  v.  Lufkin,  54  Tex.  265. 


General  Provisions,  Definitions,  Etc.  55 

§  39.     Detached  territory,  liability  for  taxes. 

The  Legislature,  by  act  of  March  11,  1875,  attached  a  portion 
of  Trinity  county  to  Polk  county,  and  inserted  in  the  act,  the  fol- 
lowing proviso:  "Provided,  the  citizens  in  said  detached  portion 
of  Trinity  county  shall  pay  their  pro  rata  portion  of  the  county 
indebtedness  up  to  the  date  of  the  passage  of  this  act."  In  a  suit 
brought  by  Trinity  county  against  Polk  county  to  recover  the  pro 
rata  portion  of  the  indebtedness  of  Trinity  county  alleged  to  be 
owing  to  the  citizens  living  in  the  detached  territory,  and  in  the 
alternative  to  recover  the  territory,  held, 

(1)  At  the  time  of  the  passage  of  the  act  the  control  of  the 
Legislature  over  county  boundaries  was  absolute,  though  such 
power  under  the  constitution  no  longer  exists. 

(2)  The  act  should  be  construed  as  it  would  be  if  the  word 
provided  were  omitted  from  the  act. 

(3)  The  detached  territory  became  absolutely  and  uncondi- 
tionally a  part  of  Polk  county  upon  the  approval  of  the  act,  and 
this  without  reference  to  whether  the  time  by  which  the  act  desig- 
nated the  detached  territory  was  actually  run  upon  the  ground 
or  not.  ^ 

(4)  Trinity  county  could  not  recover  back  the  detached  terri- 
tory nor  the  amount  levied  and  collected  by  Polk  county  upon  the 
subjects  of  taxation  therein. 

(5)  Nor  could  it  recover,  from  Polk  county  a  pro  rata  of  the 
debt  of  Trinity  county  or  cause  Polk  county  to  levy  and  collect  a 
tax  on  the  property  in  the  detached  territory  to  pay  any  portion 
of  the  debt  of  Trinity  county. 

(6)  The  action  could  not  be  maintained,  but  the  judgment 
awarding  an  execution  against  appellant  for  costs  was  error. 
Trinity  County  v.  Polk  County,  58  Tex.  321. 


CHAPTER  II. 


LEVY. 


Sec. 

40.  State  and  county  taxes — How 

levied. 

41.  Term      of      court — Adjourned 

meeting. 

42.  Levy   not   full   and   explicit — 

How  explained. 

43.  Levy  valid  if  not  sufficient 

44.  Directory  when. 

45.  Must  be  a  levy. 

46.  Levy  by  city  or  town. 

47.  Self-acting  levy. 

48.  May   compel   levy   by  manda- 

mus. 

49.  Levy    must   be   made    in   the 

mode  prescribed. 

50.  Levy    based    upon   assessment 

roll  when  to  be  made. 

51.  Time  and  manner  of  levy. 

52.  Power  of  counties  to  levy  un- 

der Act  of  1848. 

53.  Annual. 

54.  Debts   existing   prior   to   Con- 

stitution of  1876. 

55.  Purpose  of  levy  must  be  stated. 

56.  Levy  at  call  term  of  county 

,  court. 

57.  See    order    of   commissioners' 

court  held  not  to  be  general 
levy. 


Sec. 

58.  Road  tax — Limitation  of  levy. 

59.  Partial  illegality. 
Levy  of  tax  to  provide  for  the 

payment  of  debts. 

Not  in  excess — When. 

Cannot    exceed    limit — ^Exces- 
sive. 

63.  Mandamus  will  not  lie  when 

limit  is  reached. 

64.  Levy    of    city     taxes    for    15 

months  valid — ^When. 

65.  Commissioners'     court — Valid- 

ity of  tax  levy — Collateral 

attack. 
City  of  El  Paso. 
Sufficiency  of  levy. 
Extra  levy. 
Levies   for   State   and   county 

taxes. 

70.  Certain  tax  rolls  for  1905  vali- 

dated. 

71.  Validating    levies    at    special 

session    of    commissioners' 
court. 

72.  Act  30th  Legislature  creating 

a  board  to  calculate  State 
taxes. 


60. 

61. 
62. 


66. 
67. 

68. 
69. 


§  40.     State  and  county  taxes,  how  levied. 

State  taxes  are  levi'ed  by  general  law  and  are  not  required  to 
be  proved ;  county  taxes  are  levied  by  the  Commissioners'  Court, 
and  the  levy  must  be  proved.    Greer  v.  Howell,  64  Tex.  688. 

§  41.     Term  of  court — Adjourned  meeting. 

The  objection  was  made  that  taxes  had  not  been  legally 
levied,  because  this  had  not  been  done  at  or  during  a  regular  term 


Levy,  57 

of  the  county  court,  is  untenable.  The  court  convened  and  was 
duly  organized  at  the  time  prescribed  by  law.  When  a  court  is  or- 
ganized and  opened  for  a  regular  term  the  term  continues  until  it 
is  ended  by  order  of  final  adjournment,  or  until  the  efflux  of  the 
time  fixed  by  law  for  its  continuance.  The  sessions  or  settings 
of  the  court  during  the  term  are  entirely  within  the  discretion  and 
control  of  the  court.  And  its  orders  in  respect  thereto  are  intend- 
ed for  its  convenience  and  the  convenience  of  parties  interested 
in  its  proceedings.  Hence  they  may  be  altered,  revoked  or  an- 
nulled from  time  to  time,  as  the  exigency  of  the  business  to  be 
transacted  may  require.  The  orders  of  adjournment  of  its  ses- 
sions from  day  to  day  or  to  a  particular  hour  of  the  day  are  mere 
announcements  of  its  proposed  or  intended  order  of  transacting 
the  business  to  come  before  it  during  the  term.  But  certainly  the 
failure  of  the  court  to  meet  at  the  hour  or  on  the  day  to  which 
it  had  thus  taken  recess,  can  in  no  way  afiFect  or  put  an  end  to  its 
term.    Labadie  v.  Dean,  47  Tex.  100. 

§  42.     Levy  not  full  and  explicit — How  explained. 

When  a  special  levy  is  not  so  clear  and  explicit  as  is  appropriate 
in  orders  of  the  court  of  such  character,  the  entire  order  can  be 
taken  to  explain  the  levy,  and  if  the  amount  and  character  of  the 
tax,  and  of  the  property  upon  which  it  is  levied  can  be  sufficiently 
inferred  and  understood  from  the  order  to  support  the  levy  such 
levy  is  not  void.    Labadie  v.  Dean,  47  Tex.  101 

§  43.     Levy  valid  if  not  sufficient. 

A  tax  levy  to  pay  interest  on  bonds  and  create  a  sinking  fund 
for  their  payment  is  not  invalidated  by  the  fact  that  the  levy  is 
not  sufficient  to  provide  the  fund  necessary  to  pay  the  bonds  at 
maturity.     Conklin  v.  City  of  El  Paso,  44  S.  W.  879. 

§  44.     Directory  when. 

Statutes  fixing  the  time  of  levying  taxes  will  be  deemed  direc- 
tory, unless  the  taxpayer  by  reason  thereof  will  sustain  some  sub- 
stantial injury.  Pond  v.  Negus,  3  Amer.  Dec.  131 ;  1  Desty  on 
Taxation  520;  Williams  v.  School  Dist.,  32  Am.  Dec.  243;  Gear- 
hart  V.  Dixon,  1  Pa.  St.  224;  Gale  v.  Mead,  2  Denio  160,  Coogill 
V.  Long,  15  111.  202;  Hart  v.  Plum,  14  Cal.  155;  State  v.  W.  U. 
Tel.  Co.,  4  Nev.  338;  French  v.  Edwards,  13  Wall.  506 ;  People  v. 
Allen,  6  Wend.  486;  Easton  v.  Sauery,  44  Iowa  656;  Hill  v. 
Wolf,  28  Iowa  577 ;  Stickney  v.  Higgins,  10  Ala.  106 ;  St.  Audi- 
tor V.  Jackson  Co.,  65  Ala.  157;  Limestone  v.  Rother,  48  Ala.  433. 


58  Taxation  in  Texas. 

§  45.     Must  be  a  levy. 

The  essential  requisites  of  a  valid  tax  are  unquestionably: 

(1)  A  legal  levy  by  competent  Legislative  authority. 

(2)  A  valid  assessment  of  the  property  upon  which  such  tax 
is  levied  by  the  officer  or  tribunal  to  whom  this  is  committed  by 
law. 

If  these  two  requisites  concur  the  citizen  is  justly  liable  for  the 
amount  of  tax  assessed  upon  his  property.  George  v.  Dean,  47 
Tex.  73. 

§  46.     Levy  by  city  or  town. 

The  levying  of  taxes  by  the  authority  of  a  county,  city  or  town 
for  their  support,  is  as  much  an  exercise  of  the  taxing  power,  as 
when  levied  directly  by  the  State  for  its  support.  1  Desty  on 
Taxation,  p.  465. 

City  may  levy  ad  valorem  Tax. 

The  city  council  shall  have  power  within  the  city  by  ordinance 
to  annually  levy  and  collect  taxes  not  exceeding  one-fourth  of  one 
per  cent,  on  the  assessed  value  of  all  real  and  personal  estate  and 
property  in  the  city  not  exempt  from  taxation  by  the  constitution 
and  laws  of  the  State.  Sayles  R.  S.,  Art.  484 ;  Audrey  v.  City  of 
Dallas,  35  S.  W.  726,  13  Tex.  Civ.  App.  442. 

§  47.     Self  acting  levy. 

When  the  charter  of  the  city  of  San  Antonio  has  provided  that 
interest  and  sinking  fund  must  be  annually  provided  for  on  the 
bonded  indebtedness  of  the  city,  authority  is  thereby  given  for 
the  levy  of  the  taxes  to  meet  such  debts,  and  no  action  on  the  part 
of  the  city  council  is  necessary.  Wright  v.  City  of  San  Antonio, 
50  S.  W.  407;  Mitchell  Co.  v.  Bank  of  Paducah,  91  Tex.  372,  43 
S.  W.  880. 

§  48.     May  compel  levy  by  mandamus. 

The  requirement  of  the  charter  of  the  city  of  San  Antonio  that 
interest  and  a  sinking  fund  must  be  annually  provided  for  by  the 
city  for  the  city  bonded  debt,  as  required  by  the  constitution,  may 
be  enforced  by  mandamus.  Wright  v.  City  of  San  Antonio,  50 
S.  W.  407. 

§  49.     Levy  must  be  made  in  the  mode  prescribed. 

By  Article  484  of  the  Revised  Statutes  it  is  provided  that  the 
city  council  shall  have  power  by  ordinances  to  annually  levy  and 
collect  taxes.     The  Legislature  in  granting  the  power  has  also 


Levy.  59 

stipulated  the  manner  of  its  performance.  The  tax  must  be  levied 
by  an  ordinance  passed  by  the  city  council.  The  levy  is  made  by 
the  adoption  of  a  report  of  a  finance  committee  of  the  city  in 
which  said  committee  recommended  the  amount  of  tax  to  be  lev- 
ied, and  how  it  should  be  apportioned.  This  levy  is  not  in  accord- 
ance with  the  mode  pointed  out  in  the  power  conferring  authority 
upon  the  city  to  levy  the  tax.  The  levy  is  void  and  creates  no 
personal  liability  against  the  taxpayer.  Peoples  Nat.  Bank  v. 
City  of  Ennis,  50  S.  W.  633. 

§  50.     Levy  based  upon  assessment  roll  when  to  be  made. 

Before  a  city  ordinance  was  passed  levying  the  taxes,  the  as- 
sessment rolls  had  been  substantially  completed  b^y  the  assessor; 
and  while  left  open  for  corrections  and  additions,  the  city  council 
could  form  therefrom  a  substantially  correct  statement  of  the  tax- 
able values  of  the  city,  upon  which  to  make  the  levy ;  and  in  each 
of  said  years  before  making  the  levy  they  caused  the  assessment 
rolls  to  be  examined  and  based  their  levy  upon  such  assessments. 
The  charter  provides  that  supplemental  tax  rolls  shall  be  made 
out  by  the  assessor  when  additions  can  be  made  to  the  original 
rolls  and  the  fact  that  such  rolls  were  not  entirely  perfected 
would  not  render  the  levy  invalid.  The  object  of  the  law  is  that, 
before  the  city  council  can  make  the  levy,  it  must  have  before  it, 
as  a  basis,  the  assessment  roll.  Guided  by  this  official  informa- 
tion, the  council  is  empowered  to  make  the  levy.  Without  it  the 
council  should  not  act.  The  charter  of  the  city  of  Dallas,  how- 
ever, does  not  provide  that  the  assessment  rolls  should  be  officially 
approved  before  the  levy.  The  ordinances  of  the  city  levied  the 
taxes,  and  the  fact  that  the  council,  as  a  preliminary  step,  required 
its  mayor  and  finance  committee  to  make  the  estimates,  calcula- 
tions, etc.,  could  not  invalidate  their  act.  Scollard  v.  City  of  Dal- 
las, 42  S.  W.  641,  16  Tex.  Civ.  App.  620. 

§  51.     Time  and  manner  of  levy. 

Executive  and  ministerial  officers  can  only  levy  and  collect  taxes 
in  the  manner  prescribed  by  law,  which  should  be  their  governing 
rule  in  all  cases.     2  Desty  on  Taxation,  763. 

The  levying  of  a  tax  is  a  matter  solely  of  statutory  creation  and 
if  specific  means  are  prosecuted  in  the  statutory  law  no  other 
means  can  be  resorted  to  to  coerce  payment.  2  Desty  on  Taxation, 
762,  473 ;  Cooper  v.  Savannah,  4  Ga.  68 ;  Alexander  v.  Helber, 
35  Mo.  334. 


60  Taxation  in  Texas. 

Where  the  statutes  of  a  State  prescribe  a  certain  time  for  the 
levy  to  be  made  a  levy  at  any  other  time  is  invalid.  Bryan  v. 
Sandberg,  5  Tex.  423 ;  Free  v.  Scarborough,  70  Tex.  672 ;  Martin 
V.  McDiarmid,  17  S.  W.  R.  877. 

The  discretionary  power  vested  by  law  in  a  board  of  school  di- 
rectors, regarding  the  levying  of  taxes  for  school  purposes,  when 
once  exercised  is  exhausted  for  the  year  in  which  the  levy  is 
made,  and  their  successors  in  office  can  not  levy  a  different  school 
tax  for  that  year.    Oliver  v.  Carnsner,  39  Tex.  396, 

§  52.     Power  of  counties  to  levy  under  Act  of  1848. 

The  fourth  section  of  the  Act  of  16th  of  March,  1848,  to  or- 
ganize county  courts  limited  the  powers  of  the  counties  to  tax 
to  the  subjects  upon  which  a  tax  was  levied  by  the  State.  Baker 
V.  Panola  Co.,  30  Tex.  86. 

§  53.    Annual. 

The  word  annual  in  an  act  of  the  Legislature  is  not  necessary 
to  continue  it  in  force  from  year  to  year.  John  L.  Peay,  Sheriff, 
V.  E.  W.  Talbot  &  Bro.,  39  Tex.  335. 

§  54.     Debts  existing  prior  to  Constitution  of  1876. 

The  limitation  imposed  by  the  Constitution  of  1876,  on  the 
power  of  counties  to  levy  taxes,  applies  only  to  the  erection  of 
public  buildings.  For  the  purpose  of  paying  the  interest  and 
providing  a  sinking  fund  to  satisfy  any  indebtedness  existing  at 
the  adoption  of  the  Constitution  of  1876,  counties  are  authorized 
to  levy,  assess  and  collect  taxes  to  the  necessary  amount.  Const. 
Art.  XI,  Sec.  6;  Art.  XIII,  Sec.  9.  Texas  and  Pacific  Ry.  Co.  v. 
Harrison  County  et  al,  54  Tex.  120;  F.  R.  Dean  v.  A.  P.  Lufkin, 
et  al.,  54  Tex.  265. 

§  55.     Purpose  of  levy  must  be  stated. 

"Section  5  of  the  act  to  organize  commissioners'  courts  (Laws 
of  15th  Leg.  p.  52)  does  not  embrace  or  refer  to  taxes  to  pay  the 
interest  and  provide  a  sinking  fund  for  bonded  indebtedness,  in- 
curred in  aiding  internal  improvements,  which  were  in  truth 
levied  at  the  time  the  bonds  were  issued.  That  act  refers  to  and 
limits  to  twenty-five  cents  on  the  hundred  dollars  those  taxes  for 
the  payment  of  debts  incurred  prior  to  April  18,  1876,  the  levying 
of  which  is  discretionary  with  the  commissioners'  court." 

The  commissioners'  court  of  Galveston  county  in  February, 
1879,  levied  a  coimty  tax  of  seven  cents  to  create  a  sinking  fund 


Levy.  61 

to  pay  registered  county  warrants  issued  for  indebtedness  subse- 
quent to  April  18,  1876,  and  for  an  indebtedness  incurred  before 
that  date  and  also  to  create  a  sinking  fund  to  pay  warrants  issued 
since  April  18,  1876;  on  application  to  enjoin  the  collection  of  the 
tax,  held: 

The  county  court  having  already  exhausted  the  limit  allowed  to 
pay  ordinary  debts  the  levy  of  seven  cents,  so  far  as  it  was  made 
to  pay  ordinary  debts,  was  unauthorized  and  it  being  illegal  for 
that  purpose  the  entire  levy  was  thereby  infected  and  was  illegal. 

An  order  of  the  Commissioners'  Court  made  one  year  after- 
wards, declaring  that  so  much  of  the  levy  was  void  as  applied  to 
warrants  issued  after  the  18th  day  of  April,  1879,  did  not  cure  the 
illegality  of  the  levy  nor  was  it  affected  by  the  fact  that  the  entire 
tax  levied  was  needed  to  pay  debts  contracted  before  the  adoption 
of  the  Constitution. 

The  Constitution  requires  the  purpose  for  which  such  taxes 
are  levied  to  be  specified  and  gives  the  taxpayer  the  privilege  of 
paying  the  tax  in  the  coupons,  bonds  and  other  indebtedness  for 
the  payment  of  which  such  tax  may  have  been  levied. 

The  specification  of  the  purpose  of  the  tax  was  essential,  for 
without  such  specification  the  tax  was  invalid,  and  to  allow  the 
subsequent  order  explaining  the  levy  to  cure  its  illegality,  would 
be  to  disregard  the  constitutional  requirement  that  the  purpose 
of  the  tax  be  specified.  F.  R.  Dean  v.  A.  P.  Lufkin  et  al,  54 
Tex.  R.  265. 

§  56.     Levy  at  call  term  of  county  court. 

Under  Rev.  St.  Tex.,  Art.  1517,  providing  that  "no  county  tax 
shall  be  levied  except  at  a  regular  term  of  the  (county)  court"  a 
tax  levied  at  a  called  term  of  the  court  is  illegal.  Free  v.  Scar- 
borough, 8  S.  W.  490;  70  Tex.  672. 

§  57.     See  order  of  commissioners'  court  held  not  to  be  gen- 
eral levy. 

The  following  order  of  a  commissioners'  court  does  not  levy  a 
general  county  tax :  'Tt  is  ordered  and  decreed  by  the  court  that 
the  assessor  be,  and  he  is  hereby  instructed  to  assess  all  taxes  that 
he  is  authorized  to  assess  for  the  county  at  one-half  the  amount 
he  assesses  for  the  State,  and  the  sheriff  is  hereby  authorized  to 
collect  the  same  according  to  the  roll  of  the  assessor."  Dawson 
V.  Ward,  9  S.  W.  106 ;  71  Tex.  72. 


62  Taxation  in  Texas. 

§  58.     Road  tax — Limitation  of  levy. 

Under  Const,  Art.  8,  Sec.  9,  as  amended  in  1883,  counties  were 
authorized  to  levy  a  road  and  bridge  tax  of  15  cents  on  each  $100 
worth  oi  property ;  and  an  act  was  passed  authorizing  the  county 
commissioners'  court  to  make  the  levy.  Const.  1890,  Art.  8, 
Sec.  9,  provided  that  the  Legislature  might  authorize  an  addi- 
tional annual  ad  valorem  tax  for  the  further  maintenance  of  the 
public  roads,  provided  that  a  majority  of  the  taxpayers  of  the 
county  at  an  election  vote  such  tax,  not  exceeding  15  cents  on  the 
$100  worth  of  property,  an  authority  was  given  to  put  this  ar- 
ticle into  effect  by  Rev.  St.  1895,  Art.  4786.  Held,  that  an  elec- 
tion need  not  precede  a  single  levy  of  15  cents  on  each  $100 
worth  of  property  authorized  by  the  constitutional  amendment 
1883,  the  amendment  1890  relating  solely  to  an  additional  levy, 
above  that  amount. 

Const.,  Art.  8,  Sec.  9,  expressly  limiting  a  levy  of  taxes  for 
general  county  purposes  to  25  cents  on  $100  of  valuation,  can  not 
be  evaded  by  making  an  unnecessary  levy  for  public  buildings 
and  other  permanent  improvements  authorized  by  the  same  sec- 
tion, with  the  intent  to  transfer  the  levy  so  made,  when  collected, 
to  the  fund  for  county  purposes,  already  swelled  to  its  full  con- 
stitutional limit.  Jefferson  Iron  Co.  v.  Hart,  45  S.  W.  321 ;  18 
Tex.  Civ.  App.  525. 

§  59.     Partial  illegality. 

A  tax  levied  in  part  for  a  lawful  and  in  part  for  an  unlawful 
purpose,  but  within  the  legal  limits  of  the  power  of  the  city  to 
make  such  levy,  is  not  necessarily  void  in  toto. 

Where  it  was  found  in  a  suit  instituted  by  a  city  for  the  recov- 
ery of  a  tax  due  to  it  that  such  tax  was  in  part  lawful  and  in  part 
unlawful,  and  that  the  legal  and  illegal  parts  were  capable  of 
definite  ascertainment  apportionment,  the  court  should  apportion 
such  tax,  and  give  judgment  for  that  part  thereof  which  might 
lawfully  have  been  levied.  Nolle  v.  City  of  Austin,  44  S.  W.  66 ; 
91  Tex.  424. 

§  60.     Levy  of  tax  to  provide  for  the  payment  of  debts. 

"No  debt  shall  ever  be  created  by  any  city  unless  at  the  same 
time  provision  be  made  to  assess  and  collect  annually  a  sufficient 
sum  to  pay  the  interest  thereon  and  create  a  sinking  fund  of  at 
least  two  per  cent,  thereon."  St.  Const.  Art.  11,  Sec.  5;  McNeal 
V.  City  of  Waco,  89  Tex.  83 ;  33  S.  W.  322. 


Levy.  63 

"The  Constitution  requiring  that  cities  creating  debts  shall  at 
the  same  time  make  provision  for  the  payment  of  the  same  by 
assessing  tax  to  pay  interest  and  provide  a  sinking  fund  does  not 
apply  to  current  expenses."  Biddle  v.  City  of  Terrel,  82  Tex.  335  ; 
18  S.  W.  691 ;  City  of  Corpus  Christi  v.  Woessner,  58  Tex.  462; 
Dyer  v.  City  of  Brenham,  65  Tex.  526 ;  City  of  Terrel  v.  Des- 
sdnt,  71  Tex.  770;  9  S.  W.  593. 

"Counties,  cities  and  towns  are  authorized  in  such  mode  as 
may  now;  or  may  hereafter  be  provided  by  law,  to  levy,  assess 
and  collect  the  taxes  necessary  to  pay  the  interest  and  provide  a 
sinking  fund  to  satisfy  any  indebtedness  heretofore  legally  made 
and  undertaken ;  but  all  such  taxes  shall  be  assessed  and  collected 
separately  from  that  levied,  assessed  and  collected  for  current  ex- 
penses of  municipal  government,  and  shall,  when  levied,  specify 
in  the  act  of  levying  the  purpose  thereof,  and  such  taxes  may  be 
paid  in  the  coupons,  bonds  or  other  indebtedness  for  the  payment 
of  which  such  tax  may  have  been  levied."  St.  Const.,  Sec.  6, 
Art.  11. 

"All  counties  and  cities  bordering  on  the  coast  of  the  Gulf  of 
Mexico  are  hereby  authorized,  upon  a  vote  of  two-thirds  of  the 
taxpayers  therein  (to  be  ascertained  as  may  be  provided  by  law), 
to  levy  and  collect  such  tax  for  construction  of  sea  walls,  break- 
waters or  sanitary  purposes,  as  may  be  authorized  by  law,  and 
may  create  a  debt  for  such  works  and  issue  bonds  in  evidence 
thereof.  But  no  debt  for  any  purpose  shall  ever  be  incurred  in 
any  manner  by  any  city  or  county  unless  provision  is  made  at  the 
time  of  creating  the  same,  for  levying  and  collecting  a  sufficient 
tax  to  pay  the  interest  thereon  and  provide  at  least  two  per  cent, 
as  a  sinking  fund ;  and  the  condemnation  of  the  right  of  way  for 
the  erection  of  such  works  shall  be  fully  provided  for."  St. 
Const.,  Sec.  7,  Art.  11, 

§  61.     Not  in  excess  when. 

"A  levy  of  city  taxes,  not  in  excess  of  the  limit  prescribed  by 
statute,  is  not  rendered  invalid  by  the  making  of  a  subsequent 
levy,  which,  together  with  the  original  levy,  exceeds  such  limit." 
Basset  v.  City  of  El  Paso,  30  S.  W.  893 ;  88  Tex.  168. 

§  62.     Cannot  exceed  limit. 

"In  an  action  by  a  city  to  recover  delinquent  taxes,  plaintiff 
offered  in  evidence  an  ordinance  providing  that  there  should  be 


64  Taxation  in  Texas. 

levied  for  general  purposes,  "for  the  fiscal  year  ending  May  31," 
a  tax,  "$1.05  on  every  $100  valuation,",  and  offered  to  show  that 
the  tax  so  levied  was  in  fact  for  the  15  months  ending  on  said 
date.  Under  the  constitution,  a  greater  tax  than  $1  on  each  $100 
valuation  for  the  year  could  not  be  levied.  Held,  that  both  offers 
were  properly  refused." 

"Statutes  limiting  the  amount  of  taxes  which  may  be  levied  are 
mandatory,  and,  when  such  amount  is  exceeded  by  a  sum  which 
is  spread  on  the  whole  assessment  roll,  the  entire  levy  is  void." 
City  of  San  Antonio  v.  Raley,  32  S.  W.  180. 

§  62a.     Excessive. 

"An  assessment  of  taxes  by  a  county  for  road  and  bridge  pur- 
poses greater  than  15  cents  on  the  $100  is  in  violation  of  the 
constitution."    State  v.  Fulmore,  71  S.  W.  418. 

§  63.     Mandamus  will  not  lie  when  limit  is  reached. 

"When  a  city  has  levied  taxes  for  general  purposes  to  the  full 
constitutional  limit,  and  all  the  taxes  so  levied  are  required  to  meet 
current  expenses,  mandamus  will  not  lie  to  compel  an  additional 
levy  for  the  purpose  of  discharging  a  judgment  against  the  citv." 
City  of  Sherman  v.  Smith,  35  S.  W.  294 ;  12  Tex.  Civ.  App.  580. 

§  64.     Levy  of  city  taxes  for  15  months  valid,  when. 

"The  San  Antonio  city  charter  authorized  the  levy  of  a  tax  for 
general  purposes,  not  exceeding  one  per  cent,  during  any  fiscal 
year.  By  charter  amendment  the  fisqal  year  was  made  to  end 
May  31st,  instead  of  March  1st,  commencing  in  1892,  thereby  in- 
cluding for  any  fiscal  year  the  interim  from  March  1st  to  May 
31st.  In  February,  1892,  an  ordinance  levying  a  tax  exceeding 
one  per  cent,  was  passed,  which  described  the  period  for  which 
the  levy  was  made  as  the  'municipal'  and  the  'fiscal'  year  ending 
May  31,  1892,  and  as  'the  municipal  year  1891-92.'  Held,  that 
the  levy  was  not  for  the  old  fiscal  year  ending  March  1,  1892,  and 
the  interim  to  May  31,  1892,  but  for  one  year  only,  and  hence 
was  invalid  as  to  the  excess."  City  of  San  Antonio  v.  Berry,  48 
S.W.  496;  92  Tex.  319. 

§  65.     Commissioners'  court — Validity  of  tax  levy — Collateral 
attack. 

"An  order  of  the  commissioners'  court  levying  a  tax  'for 
court  house  and  jail'  sufficiently  indicates  the  purpose  for  which 
the  tax  is  levied." 


Levy.  65 

"The  commissioners'  court  may  levy  a  tax  for  the  erection  or 
repair  of  the  court  house  or  jail  without  providing  for  the  is- 
suance of  bonds  for  that  purpose." 

"Whether  there  is  a  necessity  for  the  erection  or  repair  of  a 
court  house  or  jail,  so  as  to  authorize  the  levy  of  a  tax  for  such 
purpose,  is  within  the  discretion  of  the  commissioners'  court." 

"In  an  action  to  recover  taxes  paid  under  protest,  it  can  not  be 
shown  that  the  tax,  which  was  ordered  to  be  levied  for  a  certain 
purpose,  was  in  fact  levied  with  intent  to  divert  it  to  general 
county  purposes,  thereby  escaping  the  limitation  of  the  general 
taxing  power,  as  this  would  be  a  collateral  attack  on  the  record  of 
the  commissioners'  court."  Cresswell  Ranch  &  Cattle  Co.  v. 
Roberts  County,  27  S.  W.  737. 

§  66.     City  of  El  Paso. 

(1)  "Charter  of  El  Paso  (Sp.  Laws  1873,  p.  442,  Sec.  22), 
which  provides  that  provision  shall  be  made  for  a  levy  of  two 
per  cent  to  create  a  sinking  fund  to  pay  bonds,  is  not  amended,  in 
respect  to  the  amount  of  levy  for  a  sinking  fund,  by  Const.  Art. 
11,  Sec.  7,  which  provides  for  at  least  two  per  cent,  to  create  a 
sinking  fund  for  the  payment  of  the  debts  of  cities." 

(2)  "The  'existing  debt'  referred  to  in  charter  of  El  Paso 
(Sp.  Laws  1889,  p.  49,  Sec.  87),  providing  that  necessary  or- 
dinances may  be  passed  to  provide  for  funding  an  'existing  debt' 
is  not  the  'debt'  referred  to  in  Const.,  Art.  11,  Sec.  5-7,  providing 
that  no  debt  shall  be  created  by  a  city  without  making  certain 
provisions  for  its  payment  by  a  tax  levy." 

(3)  "Taxes  levied  by  El  Paso  to  redeem  the  funded  indebted- 
ness bonds  which  appear  to  have  been  issued  to  settle  an  outstand- 
ing indebtedness  for  past  expenses,  are  valid,  where  the  bonds 
were  issued  under  provision  of  charter  of  El  Paso  (Sp.  Laws 
1889,  p.  49,  Sec.  87),  providing  that  necessary  ordinances  may  be 
passed  to  provide  for  funding  an  existing  debt."  Conklin  v.  City 
of  El  Paso,  44  S.  W.  880. 

§  67.     Sufficiency  of  levy. 

"A  tax  levy  to  pay  interest  on  bonds  and  create  a  sinking  fund 
for  their  payment  is  not  invalidated  by  the  fact  that  the  levy  is 
not  sufficient  to  provide  the  fund  necessary  to  pay  the  bonds  at 
their  maturity."    Conklin  v.  City  of  El  Paso,  44  S.  W.  880. 

(5) 


66  Taxation  in  Texas. 

§  68.     Extra  levy. 

"A  city  council  held  there  was  no  power  to  levy  an  extra  tax 
for  the  payment  of  a  pre-existing  debt."  City  of  Denison  v.  Fos- 
ter, 36  S.  W.  401 ;  90  Tex.  22. 

§  69.     Levies  for  state  and  county  taxes. 

The  following  statutes  levy  the  ad  valorem  tax  for  general 
purposes  and  for  schools. 
General  purposes  and  school  tax,  1879  to  1885 — 

By  the  act  of  April  2,  1879  (16  Leg.  p.  143),  the  ad  valorem 
State  tax  was  one-half  of  one  per  cent,  one-fourth  of  the  amount 
being  for  the  benefit  of  public  schools  and  the  remainder  for  gen- 
eral purposes.  By  the  act  of  May  4,  1882  (17  Leg.  S.  S.,  p.  18), 
the  ad  valorem  state  tax  for  all  purposes  was  three-tenths  of  one 
per  cent.  By  the  act  of  February  7,  1884  (18  Leg.  S.  S.  p.  67) 
the  ad  valorem  tax  was  seventeen  and  one-half  cents  on  $100  for 
general  revenue  purposes,  and  twelve  and  one-half  cents  on  the 
$100  for  the  maintenance  of  public  schools. 
General  purposes  and  school  tax,  1885  to  1895 — 

Art.  4662.  Direct  ad  valorem  tax.  There  shall  be  levied  and 
collected  an  annual  ad  valorem  state  tax  of  25  cents  on  the  $100 
for  general  revenue  purposes,  and  twelve  and  one-half  cents  on 
the  $100  for  the  maintenance  of  the  public  free  schools  of  the  cash 
value  thereof  estimated  in  lawful  currency  of  the  United  States 
on  all  real  property  situated,  and  all  movable  property  owned  in 
the  state  on  the  first  day  of  January  in  each  and  every  year  and 
all  property  sent  out  of  the  state  for  the  purpose  of  avoiding  the 
payment  of  taxes  thereon,  if  owned  on  the  said  first  day  of  Jan- 
uary, except  so  much  thereof  as  may  be  exempted  by  the  con- 
stitution and  laws  of  this  state,  which  cash  value  shall  be  es- 
timated under  oath  by  the  person,  firm,  company  or  association 
assessed  or  by  his  or  their  agent  or  attorney,  making  assessment 
for  said  person,  firm,  company  or  association.  (Amendment 
March  31,  1885,  June  30,  1885,  19  Leg.  p.  105)  Sayles  R.  S.  4662. 
General  purposes  1895  to  1900 — 

Art.  5046.  Ad  valorem  tax  for  general  purposes.  "  There  shall 
be  levied  and  collected  for  the  year  1895  an  ad  valorem  tax  of  25 
cents  and  annually  thereafter  an  ad  valorem  tax  of  20  cents  on 
the  $100  cash  value  thereof  estimated  in  lawful  currency  of  the 
United  States  on  all  real  property  situated  and  on  all  property 


Levy.  67 

owned  in  the  state  on  the  first  day  of  January  in  each  and  every 
year,  and  on  all  property  sent  out  of  the  state  prior  to  the  first 
day  of  January  for  the  purpose  of  evading  the  payment  of  taxes 
thereon,  and  afterwards  returned  to  the  state,  except  so  much 
thereof  as  may  be  exempted  by  the  constitution  and  laws  of  this 
state  or  the  United  States,  which  cash  value  shall  be  estimated  in 
the  manner  prescribed  by  law. 
For  schools,  1895  to  date. 

There  shall  be  levied  and  collected  an  annual  ad  valorem  state 
school  tax  of  20  cents  for  the  year  1895  and  of  18  cents  for  the 
years  thereafter  on  the  $100  of  the  cash  value  thereof  es- 
timated in  lawful  currency  of  the  United  States,  on  all  real  prop- 
erty situated  and  on  all  personal  property  owned  in  the  state  on 
the  first  day  of  January  of  each  year  and  all  personal  property 
sent  out  of  the  state  for  the  purpose  of  avoiding  the  payment  of 
taxes  thereon  and  afterwards  returned  to  the  state,  except  so 
much  thereof  as  may  be  exempted  by  the  constitution  and  laws  of 
this  state  or  the  United  States,  which  cash  value  shall  be  es- 
timated in  the  manner  prescribed  by  law.  (Acts  1895,  p.  95) 
Sayles  R.  S.  5047. 
General  purposes,  1900  to  1905— 

There  shall  be  levied  and  collected  for  the  year  A.  D.  1900 
and  annually  thereafter,  an  ad  valorem  tax  of  sixteen  and  two- 
thirds  cents  on  the  $100  cash  value  thereof  estimated  in  lawful 
currency  of  the  United  States  on  all  real  property  situated  and 
on  all  property  owned  in  the  state  on  the  first  day  of  January 
in  each  and  every  year  and  on  all  property  sent  out  of  the  state 
prior  to  the  first  day  of  January  for  the  purpose  of  evading  the 
payment  of  taxes  thereon,  and  afterwards  returned  to  the  state, 
except  so  much  thereof  as  may  be  exempted  by  the  Constitution 
and  laws  of  this  state  or  the  United  States ;  which  cash  value 
shall  be  estimated  in  the  manner  prescribed  by  law.  (Acts  1900, 
p.  14)  Sayles  Sup.  R.  S.,  Art.  5046.  ^     . 

General  purposes,  1905  to  date — • 

That  there  shall  be  levied  and  collected,  for  general  revenue 
purposes,  annually  for  the  years  1905  and  1906  an  ad  valorem 
tax  of  twenty  cents  and  annually  thereafter  an  ad  valorem  tax  of 
sixteen  and  two-thirds  cents  on  the  $100  of  the  cash  value  there- 
of, estimated  in  the  lawful  currency  of  the  United  States  on  all 


68  Taxation  in  Texas. 

real  property  situated  and  on  all  real  property  owned  in  the  state 
on  the  first  day  of  January  in  each  and  every  year,  and  on 
all  sent  out  of  the  state  prior  to  the  first  day  of  January  for  the 
purpose  of  evading  the  payment  of  the  taxes  thereon  and  after- 
wards returned  to  the  state,  except  so  much  thereof  as  may  be 
exempted  by  the  Constitution  and  laws  of  this  state  or  the  United 
States,  which  cash  value  shall  be  estimated  in  the  manner  pre- 
scribed by  law.  (Act.  1905,  p.  436  and  437) . 
County  ad  valorem  and  occupation  taxes,  1885  to  date — 

The  commissioners'  courts  of  the  several  counties  of  this  state 
shall  have  the  power  to  levy,  for  county  revenue  purposes,  a  tax 
of  one- fourth  of  one  per  cent,  and  for  roads  and  bridges  15  cents 
on  the  $100  valuation  of  all  property  subject  to  a  state  tax  by  the 
provisions  of'  this  title  and  for  the  payment  of  debts  incurred 
prior  to  September,  1883,  and  for  the  erection  of  public  buildings 
and  other  permanent  improvements  they  shall  have  power  to  levy 
a  tax  not  to  exceed  25  cents  on  the  $100  valuation  in  any  one  year ; 
and  for  the  improvement  of  public  roads  a  tax  not  to  exceed  15 
cents  on  the  $100  valuation  imder  the  restrictions  provided  in 
chapter  seven  of  title  97,  and  shall  have  power  to  levy  a  special 
tax  for  the  further  maintenance  of  public  free  schools  and  the 
erection  within  each  school  district  of  school  buildings  therein  in 
counties  not  exempt  from  the  district  school  system  ;  provided  that 
two-thirds  of  the  qualified  property  taxpaying  voters  of  the  district 
voting  at  an  election  to  be  held  for  that  purpose,  shall  vote  such 
tax  not  to  exceed  in  any  one  year  20  cents  on  the  $100  valuation 
of  the  property  subject  to  taxation  in  such  district,  and  shall  have 
the  right  to  levy  one-half  of  the  occupation  tax  levied  by  the  state 
upon  all  occupations  not  herein  otherwise  specially  exempted ; 
provided,  any  one  wishing  to  pursue  any  of  the  vocations  named 
in  this  chapter  upon  which  a  county  occupation  tax  may  be  levied, 
may  do  so  by  paying  the  same  quarterly;  and  provided  further, 
the  receipt  of  the  proper  officer  under  seal  shall  be  prima  facie  evi- 
dence of  the  payment  of  such  taxes  as  are  herein  named ;  and  pro- 
vided further,  the  provisions  of  this  law  shall  not  be  deemed  to 
efifect  (aflfect)  the  provisions  of  any  law  specially  authorizing  any 
commissioners'  court  to  levy  a  diflferent  rate  of  tax ;  and  provided 
further,  no  person  shall  be  allowed  license  for  selling  intoxicating 
or  spirituous  liquors,  or  for  keeping  any  nine  or  ten  pin  alley,  or 
billiard,    bagatelle,    pigeon-hole,     jenny-lind,     devil-among-the- 


Levy.  69 

tailors  table  or  anything  of  the  kind  used  for  profit,  for  a  period 
of  less  than  12  months ;  and  provided  further,  the  mayor  and 
board  of  aldermen  of  any  incorporated  town  or  city  shall  in  no 
case  levy  a  greater  tax  on  any  occupation  than  that  authorized 
by  this  chapter  to  be  levied  by  the  county  commissioners'  court; 
and  be  it  further  provided  that  in  all  cases  where  any  dealer  in 
merchandise,  wares  or  goods  of  any  kind,  subject  to  ad  valorem 
or  occupation  taxes,  or  both,  under  the  provisions  of  this  law,  who 
shall  after  the  rendition  of  said  merchandise,  wares  or  goods  for 
taxation,  or  after  becoming  liable  for  any  occupation  tax,  become 
bankrupt  or  make  assignment  of  said  merchandise,  wares  or 
goods,  then  the  collector  of  taxes  shall  at  once  present  to  the  re- 
ceiver or  assignee  of  said  dealer  for  payment  of  the  amount  due 
for  said  taxes  by  said  dealer,  and  in  case  of  failure  of  said  re- 
ceiver or  assignee  to  at  once  pay  the  amount  of  said  taxes,  the 
said  collector  shall  levy  upon,  seize  and  sell  from  the  said  mer- 
chandise, wares  or  goods  enough  to  satisfy  the  amount  of  said 
taxes,  and  said  taxes  until  paid  shall  constitute  a  prior  lien  on 
said  merchandise,  goods  and  wares  in  defavilt  of  said  taxes.  Art. 
5050,  Sayles  New  Revised  Statutes. 

( 1 )  An  order  to  levy  a  specified  tax  "for  court  house  and  jail" 
sufficiently  indicates  its  purpose.  Cresswell  Ranch  &  Cattle  Co.  v. 
Roberts  County,  27  S.  W.  72)7. 

(2)  A  tax  can  not  be  levied  at  a  called  session  of  the  county 
court  or  without  the  full  membership  of  the  court.  Ante  Art. 
\SAO;Free  v.  Scarborough,  70  Tex.  672;  8  S.  W.  490. 

(3)  Where  the  order  of  the  county  court  imposing  the  tax 
within  its  authority,  states  the  amount  of  the  tax  and  of  the  prop- 
erty upon  which  it  is  levied,  such  order  is  sufficient.  Labadie  v. 
Dean,  47  Tex.  90. 

(4)  The  limitation  imposed  by  the  constitution  of  1876  on  the 
power  of  counties  to  levy  taxes,  applies  only  to  the  erection  of 
public  buildings.  For  the  purpose  of  paying  the  interest  and 
providing  a  sinking  fund  to  satisfy  an  indebtedness  existing  at 
the  adoption  of  the  constitution  of  1876,  counties  are  authorized  to 
levy,  assess  and  collect  taxes  to  the  necessary  amount.  Const.  Art 
XI,  Sec.  6;  Art.  XIII,  Sec.  9;  T.  &  P.  Ry.  Co.  v.  Harrison 
County,  54  Tex.  119. 

(5)  The  limitation  of  taxes  to  50  cents  on  the  $100  valuation 
contained  in  Sec.  9,  Art.  VIII  of  the  Constitution  of  1876,  as  ap- 


70  Taxation  in  Texas. 

plied  to  cities,  counties  and  towns,  has  reference  to  taxation  for 
the  erection  of  public  buildings,  not  to  taxation  to  pay  debts  in- 
curred prior  to  the  adoption  of  the  constitution.  Dean  v.  Lufkin, 
54  Tex.  265. 

(6)  Under  the  constitution  of  1876  the  question  as  to  how 
much  tax  should  be  levied  to  pay  the  former  indebtedness  of  a 
county  was  left  without  limit  to  the  discretion  of  the  legislature 
and  the  county  commissioners'  court.  Dean  v.  Lufkin,  54  Tex. 
265. 

(7)  The  commissioners'  court  of  Galveston  county  in  Feb- 
ruary, 1879,  levied  a  county  tax  of  seven  cents  to  create  a  sink- 
ing fund  to  pay  registered  county  warrants  issued  for  indebted- 
ness subsequent  to  April  18,  1876,  and  for  an  indebtedness  in- 
curred before  that  date  and  also  to  create  a  sinking  fund  to  pay 
warrants  issued  since  April  18,  1876.  On  application  to  enjoin 
the  collection  of  the  tax  held  (1)  the  county  court  having  al- 
ready exhausted  the  limit  allowed  to  pay  ordinary  debts,  the  levy 
of  seven  cents  so  far  as  it  was  made  to  pay  ordinary  debts  was 
unauthorized,  and  it  being  illegal  for  that  purpose  the  entire  levy 
was  thereby  infected  and  was  illegal.  (2)  An  order  of  the  com- 
missioners' court  made  one  year  afterwards,  declaring  that  so 
much  of  the  levy  was  void  as  applied  to  warrants  issued  after  the 
18th  day  of  April,  1879,  did  not  cure  the  illegality  of  the  levy,  nor 
was  it  affected  by  the  fact  that  the  entire  tax  levied  was  needed 
to  pay  the  debt  contracted  before  the  adoption  of  the  Constitu- 
tion. (3)  The  Constitution  requires  the  purpose  for  which  such 
taxes  are  levied  to  be  specified  and  gives  the  taxpayer  the  privi- 
lege of  paying  the  tax  "in  the  coupons,  bonds  and  other  indebted- 
ness for  the  payment  of  which  such  tax  may  have  been  levied." 
(4)  The  specification  of  the  purpose  of  the  tax  was  essential,  for 
without  such  specification  the  tax  was  invalid  and  to  allow  the 
subsequent  order  explaining  the  levy  to  cure  its  illegality  would 
be  to  disregard  the  constitutional  requirement  that  the  purpose  of 
the  tax  be  specified.    Dean  v.  Lufkin,  54  Tex.  265. 

(8)  A  tax  can  not  be  levied  at  a  called  session  of  the  county 
court  or  without  the  full  membership  of  the  court  is  present. 
Free  v.  Scarborough,  70  Tex.  672 ;  8  S.  W.  490. 

Ad  valorem  levy  for  1900 — 

"There  shall  be  levied  and  collected,  for  the  year  A.  D.  1900, 
and  annually  thereafter,  an  ad  valorem  tax  of  sixteen  and  two- 


Levy.  71 

thirds  cents  on  the  $100  cash  value  thereof,  estimated  in  lawful 
currency  of  the  United  States,  on  all  real  property  situated  and 
on  all  property  owned  in  the  state  on  the  first  day  of  January  in 
each  and  every  year,  and  on  all  property  sent  out  of  the  state 
prior  to  the  first  day  of  January  for  the  purpose  of  evading  the 
payment  of  taxes  thereon,  and  afterwards  returned  to  the  state, 
except  so  much  thereof  as  may  be  exempted  by  the  Constitution 
and  Jaws  of  this  state  or  the  United  States ;  which  cash  value 
shall  be  estimated  in  the  manner  prescribed  by  law.  (Acts  1900, 
p.  14.)  Sayles  St.  (Sup.)  Art.  5046. 
Ad  valorem  taxes  for  1905  and  1906  and  thereafter — 

Tliat  there  shall  be  levied  and  collected,  for  general  revenue 
purposes,  annually  for  the  years  1905  and  1906  an  ad  valorem  tax 
of  twenty  cents,  and  annually  thereafter  an  ad  valorem  tax  of 
sixteen  and  two-thirds  cents  on  the  $100  of  the  cash  value  there- 
of, ■estimated  in  lawful  currency  of  the  United  States,  on  all  real 
property  situated  and  on  all  property  owned  in  the  state  on  the 
first  day  of  January  in  each  and  every  year,  and  on  all  property 
sent  out  of  the  state  prior  to  the  first  day  of  January  for  the 
purpose  of  evading  the  payment  of  the  taxes  thereon,  and  after- 
wards returned  to  the  state,  except  so  much  thereof  as  may  be 
exempted  by  the  Constitution  and  laws  of  this  state  or  the  United 
States,  which  cash  value  shall  be  estimated  in  the  manner  pre- 
scribed by  law.    Act  29  Leg.,  p.  436. 

§  70.     Certain  tax  rolls  for  1905  validated. 

Sec.  2.  All  tax  rolls  for  the  year  1905  upon  which  the  state 
ad  valorem  tax  rate  for  general  purposes  has  been  calculated  and 
extended  at  the  rate  prescribed  in  Sec.  1  of  this  Act,  before  this 
Act  takes  effect,  and  whether  said  rolls  were  returned  to  the 
county  board  of  equalization  on,  before  or  after  August  1,  1905, 
and  whether  such  rolls  were  examined,  corrected  and  approved 
by  said  board  before  or  after  this  Act  takes  effect,  are  hereby 
validated,  and  all  such  rolls  shall  have  the  same  force  and  effect, 
and  in  every  respect  be  as  valid  as  would  be  had  this  Act  been  in 
force  at  the  time  said  rolls  were  made  up  and  returned  to  said 
board  of  equalization,  and  said  rolls  been  returned  to  said  board 
on  or  before  August  1,  1905,  and  all  tax  collectors  are  required  to 
collect  said  tax  at  the  rate  provided  by  Sec.  1  of  this  Act. 

Sec.  3.  If,  when  this  Act  takes  effect,  the  tax  rolls  for  any 
county  for  the  year  1905,  have  been  returned  to  the  county  board 


72  Taxation  in  Texas. 

of  equalization,  upon  which  tax  rolls  the  state  ad  valorem  tax  for 
general  revenue  purposes  is  calculated  and  extended  at  a  rate 
other  than  as  prescribed  by  Sec.  1  of  this  Act,  said  board,  if  they 
have  not  already  examined,  corrected  and  approved  said  rolls, 
shall  not  do  so,  but  shall  return  the  same  to  the  tax  assessor  for 
(Correction  of  the  calculation  and  extension  of  said  tax  to  con- 
form to  Sec.  1  of  this  Act.  If  any  tax  rolls  have,  when  this  Act 
takes  effect,  been  approved  by  the  county  board  of  equalization, 
upon  which  said  tax  is  calculated  and  extended  at  a  rate  other 
than  is  prescribed  by  Sec.  1  of  this  Act,  then  it  is  hereby  made 
the  duty  of  the  tax  assessor,  if  said  rolls  are  still  in  his  possession, 
to  immediately  return  them  to  said  board.  If  the  tax  assessor  has 
sent  said  rolls  to  the  Comptroller  of  Public  Accounts,  the  col- 
lector and  county  clerk  of  his  county  respectively,  then  the 
Comptroller  of  Public  Accounts  and  the  said  tax  collector  and 
county  clerk,  shall,  and  it  is  hereby  made  their  duty,  immediately 
to  return  to  said  tax  assessor  the  rolls  received  from  him,  and 
said  tax  assessor  shall  immediately  upon  receipt  of  all  said  rolls 
return  them  to  said  county  board  of  equalization.  The  county 
board  of  equalization  at  the  regular  August,  1905,  term  of  the 
commissioners'  court,  if  said  rolls  have  been  returned,  or  if  not 
then  returned,  then  at  a  special  meeting  of  said  court,  to  be 
called  and  held  as  soon  as  practicable  after  said  rolls  are  returned, 
shall  rescind  and  revoke  its  action  approving  said  rolls  and  return 
them  to  the  tax  assessor  for  correction  of  the  calculation  and  ex- 
tension of  said  tax  to  conform  to  Sec.  1  of  this  Act.  The  tax 
collector  shall,  within  ten  days  from  the  date  of  the  return  to 
him  by  said  board  of  said  rolls,  correct  the  same  by  calculating 
and  extending  thereon  the  state  ad  valorem  tax  for  general  rev- 
enue purposes  at  the  rate  prescribed  in  Sec.  1  of  this  Act,  and 
on  or  before  the  eleventh  day  after  the  day  upon  which  said  rolls 
were  returned  to  him  by  said  board,  the  tax  assessor  shall  again 
deliver  to  said  board  said  rolls  verified  by  his  aflSdavit  as  required 
by  Art.  5130  of  the  Revised  Statutes,  together  with  all  data  re- 
quired by  Art.  5131  of  the  Revised  Statutes,  and  said  county 
board  of  equalization  shall,  as  soon  as  practicable  thereafter,  meet 
and  act  upon  said  rolls  as  directed  by  Art.  5132  of  the  Revised 
Statutes.  After  said  rolls  have  been  approved  by  said  board,  the 
tax  assessor  shall  send  one  copy  of  each  to  the  Comptroller  of 


Levy.  73 

Public  Accounts,  one  copy  of  each  to  the  collector  of  his  county, 
and  he  shall  file  the  other  copies  in  the  county  clerk's  office  until 
the  next  assessment,  when  the  assessor  shall  have  the  right  to 
withdraw  them  and  use  as  provided  in  Title  104  of  the  Revised 
Statutes. 

Sec.  4.  It  shall  be  unlawful  for  the  Comptroller  of  Public  Ac- 
counts to  give  any  assessor  an  order  for  the  amount  due  him  by 
the  state  for  assessing  the  state  taxes  for  1905,  as  provided  by 
Art.  5134  of  the  Revised  Statutes,  unless  and  until  said  Comp- 
troller shall  have  received  one  copy  of  each  of  said  assessor's 
rolls  duly  approved,  upon  which  said  state  ad  valorem  tax  for 
general  revenue  purposes  for  1905  is  calculated  and  extended  at 
the  rate  prescribed  in  Sec.  1  of  this  Act.  Provided,  that  no  tax 
assessor  shall  be  entitled  to  or  be  paid  any  compensation  what- 
soever for  making  the  corrections  required  by  Sec.  3  of  this  Act. 
Act.  of  29  Leg.,  p.  437. 

§  71.     Validating  levies  at  special  session  of  commissioners' 
court. 

Sec.  1.  The  levy  of  county  ad  valorem  taxes  for  any  year  by 
the  commissioners'  court  of  any  county  in  this  state  heretofore 
made  at  a  special  term  of  said  commissioners'  court  instead  of  at 
a  regular  term  thereof,  be  and  the  said  levies  are  hereby  validated 
in  so  far  as  any  contest  of  or  attack  on  same  on  account  of  being 
levied  at  a  special  term  is  concerned,  and  the  renditions,  equali- 
zation, tax  rolls,  advertisements,  sales  and  all  other  lawful  acts 
and  proceedings  of  the  proper  officers  and  of  said  commis- 
sioners' courts  had  and  done  in  reference  to  the  taxes  levied  as 
aforesaid  be  and  the  same  are  hereby  validated  in  so  far  as  any 
contest  of  or  attack  on  same  as  being  made  at  any  such  special 
term  or  under  orders  made  at  any  such  special  term  is  concerned, 
and  no  action  shall  be  maintained  or  defense  interposed  in  any 
court  of  this  state,  the  effect  of  which  would  be  to  prevent  or  de- 
feat the  collection  of  said  taxes,  or  any  part  thereof,  on  account 
of  or  arising  out  of  the  levies  made  as  aforesaid  and  otherwise 
regular  and  legal,  and  said  action  and  orders  of  said  special  terms 
are  by  this  act  validated,  in  .so  far  as  being  made  at  a  special  term 
instead  of  a  regular  term  of  such  commissioners'  court ;  provided, 
that  nothing  herein  contained  shall  be  construed  to  validate  the 
title  to  any  lands  sold  for  taxes  under  judgments  rendered  prior 
to  the  taking  effect  of  this  act.    Acts  30th  Leg.,  p.  489. 


74  Taxation  in  Texas. 

§  72.     Act  30th  Leg.,  creating  a  board  to  calculate  state  taxes. 

Sec.  1,  That  the  Governor,  Comptroller  of  Public  Accounts  and 
Treasurer  of  this  state,  be  and  the  same  are  hereby  constituted  a 
Board  to  calculate  the  ad  valorem  tax  to  be  levied  and  collected 
each  year  for  state  and  public  free  school  purposes. 

Sec.  2.  It  shall  be  the  duty  of  the  tax  assessor  of  each  county  in 
this  state  to  make  to  the  Comptroller  of  Public  Accounts  a  state- 
ment as  near  as  can  be  ascertained  from  the  inventories  or  as- 
sessments showing  the  total  amount  of  property  in  such  county 
subject  to  taxation  on  or  before  the  15th  day  of  August  of  the 
year  1907,  and  each  year  thereafter;  provided,  that  the  taxes  for 
state  and  public  free  school  purposes  shall  not  be  calculated  and 
carried  out  upon  said  rolls. 

Sec.  3.  Within  five  days  after  the  Comptroller  of  Public  Ac- 
counts has  received  such  certified  statements  from  every  assessor 
within  this  state,  said  Board  shall  meet  for  the  purpose  of  cal- 
culating the  ad  valorem  rate  for  taxes  to  be  collected  for  the  state 
and  public  free  school  purposes.  In  calculating  said  rates  the 
Board  shall  calculate  the  same  by  the  following  rules  and  upon 
the  following  basis :  They  shall  find  by  adding  together  all  the 
property  subject  to  taxation  in  all  the  counties  as  shown  by  the 
certified  statements  returned  by  the  assessors  the  total  valuation 
of  all  property  within  this  state  subject  to  ad  valorem  taxes. 
They  shall  find  by  adding  together  the  sums  appropriated  by  the 
Legislature,  which  will  or  whidi  fnay  become  due  by  the  state 
during  the  following  fiscal  year,  the  total  sum  which  will  or  which 
may  become  due  by  the  state,  during  the  following  fiscal 
year.  They  shall  find  by  adding  all  sums  paid  into  the  state 
treasury  as  taxes  for  state  purposes  from  all  sources  other  than  as 
ad  valorem  taxes  during  the  first  half  of  the  current  calendar  year 
and  the  latter  half  of  the  last  preceding  calendar  year  the  total 
sum  paid  into  the  state  treasury  from  said  sources  during  said 
time.  They  shall  find  by  subtracting  from  the  total  sum  which 
will  or  which  may  become  due  by  the  state  during  the  next  suc- 
ceeding fiscal  year  the  total  sum  which  was  paid  into  the  state 
treasury  as  taxes  for  state  purposes  during  the  first  half  of  the 
current  calendar  year  and  the  latter  half  of  the  last  preceding 
calendar  year,  the  total  sum  for  state  purposes  which  must  be  col- 
lected by  ad  valorem  taxes.    They  shall  add  to  such  remainder,  20 


Levy.  75 

per  cent,  of  said  remainder.  They  shall  divide  the  total  sum  for 
state  purposes  which  must  be  collected  by  ad  valorem  taxes 
added  to  20  per  cent  of  such  total  sum  by  the  quotient  of  the 
total  valuation  of  all  property  within  this  state  divided  by  one 
hundred.  The  quotient  shall  be  the  number  of  cents  on  the  $100 
valuation  to  be  collected  for  the  current  year  for  state  purposes ; 
provided  that  said  quotient  shall  not  be  nm  to  more  than  three 
decimals,  and  provided  that  the  rate  for  state  purposes  shall  never 
exceed  the  rate  fixed  by  law  on  the  $100  valuation  of  property.  In 
calculating-  the  rate  to  be  collected  for  public  free  school  purposes 
the  said  board  shall  take  into  consideration  the  number  of 
children  in  the  state  within  the  scholastic  age  to  be  determined 
from  the  most  recent  official  sichool  census;  and  shall  fix  a  rate 
that  will  yield  and  produce  for  such  fiscal  year  four  dollars  per 
capita  for  all  the  children  within  the  scholastic  age,  as  shown 
by  said  scholastic  census,  provided  the  rate  so  fixed  for  any  year 
shall  never  exceed  the  rate  fixed  by  law. 

Sec.  4.  It  shall  be  the  duty  of  the  Comptroller  of  Public  Ac- 
counts to  certify  to  the  assessor  of  taxes  of  each  county  in  this 
state,  through  registered  letter,  the  rate  of  taxes  for  state  pur- 
poses and  for  public  free  school  purposes  for  the  current  year, 
and  shall  also  publish  immediately  such  rate  for  thirty  days  in 
some  newspaper  published  in  the  state  and  having  a  general  cir- 
culation therein,  and  as  soon  as  such  tax  assessor  has  received 
notice  of  such  rate  he  shall  calculate  the  taxes  due  the  state  for 
state  purposes,  and  also  the  taxes  due  for  public  free  school  pur- 
poses, on  all  taxable  property  within  his  county,  as  set  out  in  Sec. 
3  of  this  act,  and  shall  carry  the  same  out  upon  the  copies  of  the 
tax  rolls  of  the  county  to  be  delivered  to  the  tax  collector  and  to 
the  clerk  of  the  county  court  and  to  be  returned  to  the  Comp- 
troller of  Public  Accountsi,  as  provided  by  law.  After  he  has 
so  completed  the  said  copies  of  the  tax  rolls  he  shall  return  to 
the  Comptroller  of  Public  Accounts  a  copy  of  same. 

Sec.  5.  The  commissioners'  courts  of  the  several  couties  of  this 
state,  all  the  members  thereof  being  present,  at  either  a  regular  or 
special  session,  may  at  any  time  after  the  tax  assessor  of  their  re- 
spective counties  have  forwarded  to  the  Comptroller  of  Public 
Accounts  the  certificate  required  in  Sec.  2  of  this  Act,  and  prior 


76  Taxation  in  Texas, 

to  the  time  when  the  tax  collector  of  such  county  shall  have  be- 
gun to  make  out  his  receipts,  calculate  the  rate  and  adjust  the 
taxes  levied  in  their  respective  counties  for  general  purposes  to 
the  taxable  values  shown  by  the  assessment  rolls.  Act  30  Leg.,  pp. 
464-465. 


CHAPTER  III. 


ASSESSMENTS. 


Sec.  Sec. 

73.  Annual  assessment  a  lien.  87. 

74.  Assessment  necessary. 

75.  Proceedings  where  lands  can-  88. 

not  be  easily  described.  89. 

76.  What  is  an  assessment.  90. 

77.  Place  of  assessment.  91. 

78.  Taxes  not  to  be  paid  twice, 

etc.  92. 

79.  Leasehold  interests  in  public 

lands.  93. 

80.  Should    use    forms    of    comp- 

troller. 94. 

81.  Irregularities        free        from  95. 

fraud.  96. 

82.  Manner    of    making   out    tax  97. 

lists  directory. 

83.  Tract  or  lot.  98. 

84.  United    States    paper    money  99. 

taxable. 

85.  Assessed  as  money  on  hand.  100. 

86.  Taxpayer  to  make  oath. 


When  assessments  to  be 
made. 

Irregular    assessments    valid. 

Mistake  in  name  of  owner. 

Failure  to  list  for  taxation. 

Collectors  roll  not  part  of 
assessment. 

Assessment  not  on  proper 
roll. 

No  presumption  as  to  regular- 
ity after  lapse  of  time. 

Void  assessment — Remedies. 

Property  added  to  list  valid. 

Credits  assessed — Where. 

Showing  rate  of  assessment 
by  custom. 

Refused  to  render  list. 

Tax  rolls — When  admitted  in 
evidence. 

Double  assessment. 


§  73.     Annual  assessment  a  lien. 

Constitution  of  1870 — 

"The  annual  assessment  made  upon  landed  property  shall  be  a 
lien  upon  the  property."    Art.  XII,  Sec.  20. 
Constitution  of  1876 — 

"The  annual  assessment  made  upon  landed  property  shall  be  a 
special  lien  thereon,  and  all  property,  both  real  and  personal,  be- 
longing to  any  delinquent  taxpayer  shall  be  liable  to  seizure  and 
sale  for  the  payment  of  all  taxes  due  by  such  delinquent."  Art. 
VIII,  Sec.  15. 

General  provision  of  Const,  of  1870. 

Special  provision  of  Const,  of  1876. 
Constitution  contemplates  two  things — 

1.  A  lien  upon  the  particular  tract  of  land  assessed,  and, 

2.  Liability  of  other  tracts,  belonging  to  the  delinquent,  to 
seizure  and  sale. 


78  Taxation  in  Texas. 

Constitution  itself  makes  this  distinction  and  division.  Liability 
to  seizure  and  sale  of  other  property  than  that  taxed,  arises  only 
upon  delinquency,  whereas  the  lien  on  the  tract  assessed  is 
created  eo  instanti  with  making  of  the  assessment  and  accrual  of 
the  tax. 

Justice  Brown  recognizes  this  in  City  of  Henrietta  v.  Eustis,  87 
Tex.  16,  at  18. 

All  taxes  upon  real  property  shall  be  a  lien  upon  such  property 
until  the  same  shall  have  been  paid.  And  should  the  assessor  fail 
to  assess  any  real  estate  for  any  one  or  more  years,  the  lien  shall 
be  good  for  every  year  that  he  should  fail  to  assess  for,  and  he 
may,  in  listing  property  for  taxes  any  year  thereafter,  assess  all 
the  back  taxes  due  thereon,  according  to  the  provisions  of  this 
title.     (lb.,  Sec.  22.)     S.  R.  S.  Art.  5086. 

Where  there  were  two  surveys  in  the  same  county  in  name 
of  same  grantee  and  for  the  same  number  of  acres,  an  assess- 
ment as  unrendered  land  as  follows :  "Owner  unknown,  ab- 
stract number  560,  original  grantee,  Thomas  Hamilton,  number  of 
acres  1067,  unrendered  1067  acres,"  was  insufficient  to  determine 
which  of  the  two  was  the  land  assessed  or  to  fix  the  lien  of  the 
state  for  taxes  on  either. 

Art.  7,  Sec.  15,  of  the  Constitution,  reads  as  follows:  "The 
annual  assessfnent  made  upon  landed  property  shall  be  a  special 
lien  thereon,  and  all  property,  both  real  and  personal,  belonging 
to  any  delinquent  taxpayer  shall  be  liable  to  seizure  and  sale  for 
the  payment  of  all  taxes  and  penalties  due  by  such  delinquent ; 
and  such  property  may  be  sold  for  the  payment  of  the  taxes  and 
penalties  due  by  such  delinquent,  under  such  regulations  as  the 
Legislature  rnay  provide."  The  lien  of  the  state,  under  the  pro- 
visions of  the  Constitution,  arises  out  of  the  assessment  of  the 
property  and  does  not  exist  until  that  assessment  is  made.  It  is 
the  assessment  made  annually  by  the  officers  of  the  state  under 
and  in  accordance  with  the  law  which  holds  a  lien  upon  the  land. 
The  word  "assessment"  as  here  used  evidently  means  the  sum 
which  has  been  ascertained  as  the  apportioned  part  of  the  tax  to 
be  charged  against  the  particular  piece  of  property,  but  under  our 
Constitution  and  the  provisions  of  our  statute,  the  word  em- 
braces more  than  simply  the  amount  and  includes  the  proce4ure 
on  the  part  of  the  officials  by  which  the  property  is  listed,  valued, 


Assessments.  79 

and  finally  the  pro  rata  declared.  Clegg  v.  State,  42  Tex.  610; 
Welty  on  Assessment,  p.  6.  It  was  held  in  the  case  of  Clegg  v. 
State,  42  Tex.  610,  that  the  state  could  not  maintain  an  action 
against  the  property. 

Under  the  Constitution  and  the  provisions  of  our  statute,  no 
lien  attached  to  the  land  in  question  unless  the  assessments  made 
in  1884,  1885  and  1886  were  valid  and  binding  under  the  terms 
of  Art.  4711,  Revised  Statutes  of  1879,  which  was  then  in  force, 
and  is  in  this  language:  "If  the  assessor  of  taxes  discover  any 
real  property  in  his  county  subject  to  taxation  which  has  not  been 
listed  to  him,  he  shall  list  and  assess  such  property  in  the  manner 
following,  to-wit:  1.  The  name  of  the  owner;  if  unknown,  say 
'unknown.'  2.  Abstract  number  and  number  of  certificate.  3. 
Number  of  the  survey.  4.  Name  of  the  original  grantee.  5. 
Number  of  acres.    6.  The  true  and  full  value  thereof." 

The  construction  of  the  law  most  favorable  to  the  state  is 
that  a  substantial  compliance  with  the  statute  would  be  sufficient 
to  fix  the  lien  for  the  taxes,  and  for  the  purposes  of  this  opinion 
only,  we  adopt  that  as  the  rule  by  which  the  case  is  to  be  decided. 
If  the  description  given  in  the  assessment  is  such  that  by  applying 
it  to  the  land  it  can  be  identified,  it  is  a  substantial  compliance 
with  the  requirements  of  the  statute  and  the  lien  attached.  If 
■there  has  been  but  one  tract  of  land  in  Parker  county  located 
under  the  Thomas  Hamilton  certificate,  or  if  the  two  tracts  had 
differed  in  the  number  of  acres  contained  therein,  then  the  ab- 
stract number  would  be  sufficient  to  identify  the  particular  tract 
of  land  sought  to  be  designated  by  number  560,  but  it  was  shown 
by  the  evidence  that  there  was  another  tract  of  land  in  the  county 
located  by  virtue  of  the  same  certificate,  and  containing  the  same 
number  of  acres  of  land,  valued  at  the  same  sumi,  and  in  no  way 
distinguished  from  the  other  except  by  the  abstract  numbers. 
The  question  arises,  could  any  one  determine  to  which  of  the 
two  surveys  abstract  number  560  was  affixed?  A  careful  con- 
sideration of  the  matter  has  satisfied  us  that  there  is  no  way 
of  applying  the  description  given  in  the  assessment  of  the  tracts 
of  land  which  would  distinguish  one  from  the  other,  which  fact 
renders  the  description  uncertain,  and  the  assessment  invalid ; 
hence  no  lien  attached.  State  v.  Farmer,  94  Tex.  232;  57  S.  W 
84;  59  S.  W.  541. 


80  Taxation  in  Texas. 

§  74.     Assessment  necessary. 

All  property  of  private  corporations  except  in  cases  where 
some  other  provision  is  made  by  law,  shall  be  assessed  in  the 
name  of  the  corporation  and  in  collecting  the  taxes  on  the  same 
all  the  personal  property  of  such  corporation  shall  be  liable  to  be 
seized  wherever  the  same  may  be  found  in  the  county,  and  sold 
in  the  same  manner  as  the  property  of  individuals  may  be  sold 
for  taxes.  All  statements  and  lists  made  by  corporations  that  are 
required  to  be  sworn  to  shall  be  verified  by  the  affidavit  and  sig- 
nature of  the  secretary  of  said  corporation  and  if  they  have 
no  secretary,  the  officer  who  discharges  the  duties  of  secretary 
of  said  corporations.     R.  S.  5084. 

All  real  property  subject  to  taxation  shall  be  assessed  to  the 
owners  thereof  in  the  manner  herein  provided,  but  no  assess- 
ment of  real  property  shall  be  considered  illegal  by  reason  of 
the  same  not  being  listed  and  assessed  in  the  name  of  the  owner  or 
owners  thereof.     R.  S.  5085. 

All  taxes  upon  real  property  shall  be  a  lien  upon  such  prop- 
erty until  the  same  shall  have  been  paid.  And  should  the  as- 
sessor fail  to  assess  any  real  estate  for  any  or  more  years  the 
lien  shall  be  good  for  every  year  that  he  should  fail  to  assess  for 
and  he  may,  in  listing  property  for  taxes  any  year  thereafter 
assess  for  all  the  back  taxes  due  thereon,  according  to  the  pro- 
visions of  this  title.     R.  S.  5086. 

"It  has  been  repeatedly  decided,  that  no  right  of  action  ex- 
ists for  the  non-payment  of  an  ad  valorem  property-tax,  until  an 
assessment  has  been  made  as  provided  by  law."  (R.  R.  Co.  v. 
ComifionwealtJi,  1  Burch  250;  Shozmlter  v.  Brozvn,  35  Miss. 
423;  People  v.  Hastings,  29  Cal.  449;  Mid  diet  on  v.  Biilin,  18 
Conn.  189;  Woodbridge  v.  Detroit,  8  Mich.  301.) 

This  proposition  is  a  necessary  conclusion,  easily  deducible 
from  the  essential  nature  of  taxation  (Cooley,  501),  as  well  as 
from  the  constitutional  provisions  relating  to  taxes  which  we 
have  just  cited,  and  others  which  may  be  considered  in  connec- 
tion with  them,  viz:  Sec.  28  and  40  of  Art.  12  (the  last,  as 
originally  adopted.) 

"It  is  the  very  essence  of  taxation,"  says  Judge  Cooley,  in  his 
most  admirable  and  able  treatise  on  constitutional  limitations  (p. 
495),  "that  it  be  levied  with  equality  and  uniformity,  and,  to  this 


Assessments.  81 

end,  that  there  should  be  some  system  of  apportionment.  When 
the  burthen  is  common,  there  should  be  common  contribution  to 
discharge  it.  Taxation  is  the  equivalent  for  the  protection  which 
the  government  affords  to  the  persons  and  property  of  its  citi- 
zens ;  and  as  all  are  alike  protected,  so  all  alike  should  bear  the 
burthen,  in  proportion  to  the  interests  secured.  When  taxes  are 
levied  upon  property  there  must  be  an  apportionment  with  refer- 
ence to  a  uniform  standard  or  they  degenerate  into  mere  arbitrary 
exactions."  And  though  equality  and  uniformity  of  all  property 
taxes  may  be,  and  are  generally  very  specifically  provided  for  in 
our  state  Constitutions,  little  more  is  done  thereby,  as  this  pro- 
found jurist  says,  "than  to  state  in  concise  language  a  principle  of 
constitutional  law,  which,  whether  declared  or  not,  would  inhere 
in  the  power  to  tax." 

The  levy  and  assessment  of  a  property  tax  involves  the  ex- 
ercise of  separate  and  distinct  powers  and  duties;  the  first  is 
strictly  legislative  in  its  character,  while  the  latter,  to  a  great  ex- 
tent, at  least  in  this  state,  is  judicial.  By  its  levy  the  Legislature 
requires  a  specific  sum,  deemed  necessary  for  the  demands  of  the 
government,  to  be  apportioned  pro  rata  by  assessment  upon  all  the 
property  chargeable  with  it,  or  as  is  usual  with  us,  and  less  com- 
plex, the  levy  is  made  by  a  charge  of  a  definite  per  cent,  upon  the 
value  of  the  property  liable,  and  then  the  amount  to  be  paid  by 
the  citizen  is  ascertained  by  the  assessment  of  the  given  per  cent, 
on  the  property  subject  to  it,  by  the  officer,  at  the  time  and 
in  the  manner  provided  for  its  assessment.  If  suit  could  be 
brought  before  assessment,  or  the  pro  rata  value  of  the  property 
as  levied  could  be  collected  on  other  evidence  of  its  value  than 
that  furnished  by  its  assessment,  as  directed  in  the  Constitution 
(Art.  12,  Sec.  28),  there  would  be  a  manifest  disregard  of  "the 
essential  nature"  of  a  property  tax,  and  a  plain  violation  of  the 
constitutional  provision  for  its  assessment."  CI  egg  v.  State,  42 
Tex.  609-610-611. 

One  of  the  essentials  of  a  valid  tax  is  a  valid  assessment  of  the 
property  upon  which  said  tax  is  levied,  by  the  officer,  or  tribunal 
to  whom  this  duty  is  committed  by  law.  George  v.  Dean,  47  Tex. 
73. 

§  75.     Proceedings  where  lands  cannot  be  easily  described. 

In  counties  in  which  the  subdivisions  of  surveys  are  not  reg- 
ularly numbered,  and  in  cities  or  towns  in  which  the  blocks  or 

(6) 


82  Taxation  in  Texas. 

subdivisions  are  not  numbered,  or  are  so  irregularly  numbered  as 
to  make  it  difficult  or  impossible  for  the  assessor  to  list  the  same, 
the  commissioners'  court  of  such  counties  may  have  all  the  blocks 
and  subdivisions  of  surveys  platted  and  numbered  so  as  to 
identify  each  lot  or  tract,  and  to  furnish  the  assessor  with  maps, 
or  a  certified  copy  of  same  or  any  part  thereof,  shall  be  admis- 
sible evidence  in  all  courts,  provided  that  the  cost  of  making 
said  survey  and  plats  shall  be  defrayed  by  the  county  in  which 
said  property  is  situated  and  of  which  the  said  commissioners' 
court  ordered  the  said  surveys  and  plats  made ;  provided,  that  the 
oost  of  any  map  of  a  town  or  city  shall  be  paid  by  such  town. or 
city  when  ordered  by  the  town  or  city.  Act  1895,  p.  139,  Sec.  17; 
S.  R.  S.,  Art.  5232q. 

§  76.     What  is  an  assessment. 

"The  amount  of  tax  with  which  a  party  is  justly  chargeable  by 
reason  of  the  levy  of  an  ad  valorem  tax  can  be  properly  ascer- 
tained only  by  an  assessment  in  the  manner  and  by  the  officer  or 
tribunal  to  whom  this  duty  is  committed  by  law.  Until  his  prop- 
erty has  been  thus  assessed  the  taxpayer  can  not  be  called  upon 
for  its  payment.  No  liability  attaches  either  to  him  or  to  his  prop- 
erty. An  assessment,  however,  is  an  altogether  different  thing 
from  the  tax  roll.  By  the  assessment,  the  liability  of  the  taxpayer 
is  fixed.  It  ascertains  the  facts,  and  furnishes  the  data  for  the 
proper  preparation  of  the  rolls.  To  make  an  assessment  the  officer 
or  tribunal  to  whom  the  duty  is  committed,  is  required  to  ascer- 
tain and  make  an  inventory  or  list  of  the  property  upon  which 
the  tax  has  been  levied,  and  to  estimate  or  determine  its  value. 
When  the  property  is  listed  and  valued,  the  amount  of  tax  for 
which  the  owner  is  liable  is  merely  a  matter  of  arithmetical  cal- 
culation. While  this  amount  should  be  shown  and  exhibited  by 
the  tax  roll  if  properly  prepared,  it  is  not  an  essential  part  or  req- 
uisite of  the  assessment."  George  v.  Dean,  47  Tex.  86;  Cooley 
on  Taxation,  p.  258. 

"An  assessment  of  property  for  taxation  includes  a  list  of 
property  to  be  taxed  in  some  form  of  an  estimate  of  the  sums 
which  are  to  guide  in  apportioning  the  tax."  Sullivan  v.  Bitter, 
113  S.  W.  193. 


Assessments.  83 

§  77.     Place  of  assessment — How  assessed. 

All  property,  whether  owned  by  persons  or  corporations, 
shall  be  assessed  for  taxation  and  the  taxes  paid  in  the  county 
where  situated,  but  the  Legislature  may,  by  a  two-thirds  vote,  au- 
thorize the  payment  of  taxes  of  non-residents  of  counties  to  be 
made  at  the  office  of  the  Comptroller  of  Public  Accounts.  State 
Const.,  Art  8,  Sec.  2. 

No  person,  company  or  corporation  shall  be  entitled  to  any  de- 
duction on  account  of  any  bond,  note  or  obligation  of  any  kind 
given  to  any  mutual  insurance  company,  nor  on  account  of  any 
unpaid  subscription  to  any  religious,  literary,  scientific  or  chari- 
table institution  or  society,  nor  on  account  of  any  subscription  to 
or.  installment  payable  on  the  capital  stock  of  any  company, 
whether  incorporated  or  unincorporated.    R.  S.,  Art.  5081. 

Property  held  under  a  lease  for  a  term  of  three  years  or  more, 
or  held  under  a  contract  for  the  purchase  thereof,  belonging 
to  this  state  or  that  is  exempt  by  law  from^  taxation  in  the  hands 
of  the  owner  thereof  shall  be  considered  for  all  purposes  of  taxa- 
tion as  the  property  of  the  person  so  holding  the  same,  except 
as  otherwise  specially  provided  for  by  law. 

The  general  rule  is  that  the  owner  of  the  real  estate  leased 
is  taxed  upon  the  entire  value  of  the  property.  This  satisfies 
the  constitutional  requirement  that  all  property  in  this  state 
whether  owned  by  natural  persons  or  corporations  other  than 
municipal  shall  be  taxed.    R.  S.  5087. 

Each  parcel  of  real  property  shall  be  taxed  at  its  true  and  full 
value  in  money,  excluding  the  value  of  crops  growing  or  un- 
gathered  thereon. 

2.  In  determining  the  full  and  true  value  of  real  and  personal 
property  the  assessor  shall  not  adopt  a  lower  or  different  standard 
of  value,  because  the  same  is  to  serve  as  a  basis  of  taxation, 
nor  shall  he  adopt  as  a  criterion  of  value  the  price  for  which 
such  property  would  sell  at  auction  or  a  forced  sale  or  in  the  ag- 
gregate with  all  the  property  in  his  county;  but  he  shall  value 
each  tract  or  lot  by  itself  arid  at  such  sum  and  price  as  he  be- 
lieves the  same  to  be  fairly  worth  in  money  at  the  time  such  as- 
sessment is  made. 

(3.)  In  valuing  any  real  property  in  which  there  is  a  coal  or 
other  mine  or  stone  or  other  quarry  or  springs  possessing  me- 


84  Taxation  in  Texas. 

dicinal  properties  the  same  shall  be  valued  at  such  a  price  as 
such  property  including  a  mine  or  quarry  or  spring  would  prob- 
ably sell  for  at  a  fair  voluntary  sale  for  cash. 

(4.)  Taxable  leasehold  estates  shall  be  valued  at  such  a  price 
as  they  would  bring  at  a  fair  voluntary  sale  for  cash. 

(5.)  Personal  property  of  every  description  shall  be  valued  at 
its  true  and  full  value  in  money. 

(6.)  Money,  whether  in  possession  or  on  deposit  or  in  the 
hands  of  any  member  of  the  family  or  any  other  person  whatso- 
ever, shall  be  entered  in  the  statement  at  the  full  amount  thereof. 

(7.)  Every  credit  for  a  sum  certain  payable  either  in  money 
or  property  of  any  kind  shall  be  valued  at  the  full  value  of  the 
same  so  payable.  If  for  a  specified  article  or  specified  number 
or  quantity  of  property  of  any  kind  it  shall  be  valued  at  the  cur- 
rent price  of  such  property  at  the  place  where  payable.  An- 
nuities or  moneys  payable  at  stated  period  shall  be  valued  at  the 
price  that  the  person  listing  the  same  believes  them  to  be  worth 
in  money. 

(1.)  The  legality  of  an  assessment  of  a  tax  on  the  property  of 
a  national  bank  which  does  not  exceed  its  true  value  is  not  af- 
fected by  the  custom  of  an  assessor  to  assess  other  property  at 
a  uniform  valuation  less  than  its  true  value.  Engelke  v.  Schlenker, 
75  Tex.  559;  12  S.  W.  999. 

(2.)  A  bank  may  accumulate  United  States  treasury  notes  over 
its  counter  and  such  sum  be  exempt  from  taxation ;  otherwise 
if  the  treasury  notes  had  been  procured  for  the  special  purpose 
of  avoiding  taxation  by  the  exchange  of  taxable  money  or  prop- 
erty. Grimn  v.  Heard,  78  Tex.  607 ;  14  S.  W.  892.  See  Arts. 
5079  and  5088a. 

Art.  5088a. — Circulating  notes  of  national  banking  associations 
and  United  States  legal  tender  notes  and  other  notes  and  cer- 
tificates of  the  United  States  payable  in  demand  and  circulating  or 
intended  to  circulate  as  currency  and  gold,  silver  and  other  coin 
shall  hereafter  be  subject  to  taxation  as  money  on  hand  or  on  de- 
posit under  the  laws  of  this  state.    R.  S.,  Art  5088. 

Art.  5088b. — The  assessor  of  taxes  shall  assess  the  same  in 
the  same  manner  as  money  on  hand  or  on  deposit  or  other  per- 
sonal property  as  provided  for  in  the  general  assessment  laws 
of  this  state.    See  Arts.  5079b,  5088,  Sec.  6. 


Assessments.  85 

§  78.     Taxes  not  to  be  paid  twice,  etc. 

Any  lands  which  may  have  been  assessed  in  county  according 
to  the  abstract  of  land  titles,  and  the  taxes  paid  thereon  according 
to  law,  shall  not  be  afterwards  subject  to  the  payment  of  taxes 
for  the  same  period  in  a  different  county,  although  a  subsequent 
survey  and  determination  of  the  county  boundaries  may  show 
said  lands  to  be  in  a  different  county  from  that  in  which  they 
were  originally  assessed ;  and  any  sales  of  such  lands  for  al- 
leged delinquency  shall  be  illegal  and  void.  Acts  1879,  p.  153, 
Sec.  2.)  5.  R.  S.  Art.  5071.  ^ 

§  79.     Leasehold  interests  in  public  lands. 

Property  held  under  a  lease  for  a  term  of  three  years  or  more, 
or  held  under  a  contract  for  the  purchase  thereof,  belonging  to 
this  state,  or  that  is  exempt  by  law  from  taxation  in  the  hands 
of  the  owner  thereof,  shall  be  considered  for  all  purposes  of 
taxation  as  the  property  of  the  person  so  holding  the  same,  ex- 
cept as  otherwise  specially  provided  by  law.  (lb.,  p.  281,  Sec. 
23.) 

(1)  The  general  rule  is  that  the  owner  of  real  estate  leased 
is  taxed  upon  the  entire  value  of  the  property.  This  satisfies  the 
constitutional  requirement  that  all  property  in  this  state,  whether 
owned  by  natural  persons  or  corporations  other  than  municipal, 
shall  be  taxed  according  to  its  value.  It  would  seem  where  the 
leasehold  is  taxed  that  its  value  should  be  deducted  from  the 
taxable  interest  of  the  owner,  otherwise  double  taxation  would 
be  imposed,  not  to  be  presumed  when  the  law  can  be  otherwise 
construed.  Sec.  9,  Art.  11,  and  Sec.  6,  Art.  7,  of  the  constitu- 
tion, exempt  from  taxation  lands  held  by  counties  for  public 
free  school  purposes,  and  such  exemption  limits  the  power  of 
the  legislature.  The  constitution  forbidding  the  taxation  of  the 
lands,  it  forbids  the  taxation  of  an  estate  therein  less  then  the  fee, 
whether  imposed  upon  the  county  or  its  lessee.  County  school 
lands  are  not  subject  to  taxation  while  owned  >by  counties, 
whether  the  lands  be  leased  or  not.  Daiighcrty  r.  Thompson,  71 
T.  192 ;  9  S.  W.  R.  99. 

(2.)  A  lease  in  which  the  state  reserves  the  right  to  sell  and 
thereby  terminate  the  lease  at  any  time  is  not  such  title  a?,  con- 
templated in  this  article.  See.  Art.  5061.  Trammel  v.  Taught,  74 
T.  557;  12  S.  W.  R.  317. 


86  Taxation  in  Texas. 

(3.)  When  a  leasehold  is  taxed  its  value  should  be  deducted 
from  the  taxable  interest  of  the  owner.  Daugherty  v.  Thompson, 
71  T.  192;9  S.  W.  R.  99. 

§  80.     Should  use  forms  of  comptroller. 

"The  various  statutes  on  the  subject  of  the  assessment  and  col- 
lection of  taxes  have  each  contained  a  provision  that  the  as- 
sessor and  collector  should  use  the  form  and  pursue  the  instruc- 
tions of  the  Comptroller  of  Public  Accounts."  Albright  v.  The 
Governor,  25  Tex.  687. 

§  81.     Irregularities  free  from  fraud. 

"Irregularities  in  assessments,  when  not  resulting  from  fraud, 
will  not  render  the  taxes  founded  upon  such  assessments  void." 
State  V.  Bremond,  38  Tex.  116. 

§  82.     Manner  of  making  out  tax  lists  directory. 

"The  statute  regulating  the  manner  in  which  list  of  delin- 
quent taxpayers  shall  be  made  out,  is  directory ;  and  if  its  es- 
sential requirements  be  complied  with,  it  is  sufficient."//.  &  T.  C. 
Ry.  Co.,  V.  The  State,  39  Tex.  148. 

§83.     Tract  or  lot. 

The  term  "tract  or  lot"  and  "piece  or  parcel"  of  real  property 
and  piece  and  parcel  of  land,  whenever  used  in  this  title,  shall 
each  be  held  to  mean  any  quality  of  land  in  possession  of,  owned 
by  or  recorded  as  the  property  of  the  same  claimant,  person, 
company  or  corporation.  Acts  1876,  p.  275,  Sec.  4,  S.  R.  S.  Art. 
5064. 

§  84.     United  States  paper  money  taxable. 

Circulating  notes  of  national  banking  associations  and  United 
States  legal  tender  notes  and  other  notes  and  certificates  of  the 
United  States,  payable  on  demand  and  circulating  or  intended 
to  circulate  as  currency,  and  gold,  silver  and  other  coin,  shall 
be  hereafter  subject  to  taxation  as  money  on  hand  or  on  deposit, 
under  the  laws  of  this  state.  (Acts  1895,  p.  49.)  S.  R.  S.  Art. 
5088a. 

§  85.     Assessed  as  money  on  hand. 

The  assessor  of  taxes  shall  assess  the  same  in  the  manner  as 
money  on  hand  or  on  deposit  or  other  personal  property,  as  pro- 


Assessments.  87 

vided  for  in  the  general  assessment  laws  of  this  state.     (lb.)     See 
Arts.  5064,  5079b,  5088,  Sec.  6.  S.  R.  S.  Art.  5088b. 

§  86.     Taxpayer  to  make  oath. 

All  assessors  of  taxes  in  this  state  shall  require  all  taxpayers 
when  assessed  by  them  to  make  oath  as  to  any  such  sale,  ex- 
change or  transfer  made  by  them  on  the  first  day  of  January  or 
within  sixty  days  before  said  first  day  of  January  of  any  year 
for  which  any  such  assessment  is  made,  as  to  the  good  faith 
and  bona  fide  business  transaction  of  any  such  sale,  exchange  or 
transfer,  as  above  set  forth,  if  any  such  should  have  been  made 
by  them,  and  if  it  should  be  disclosed  that  any  such  pretended 
sale,  exchange  or  transfer  has  been  made  for  the  purpose  of 
evading  taxation,  then  and  in  that  event  the  assessor  shall  list 
and  render  against  such  person  the  coin,  bank  notes  or  other 
notes  or  bonds  subject  to  taxation  under  the  laws  of  this  state; 
provided,  that  if  any  person  shall  make  a  false  affidavit  as  to 
any  of  the  foregoing  facts  he  shall  be  deemed  guilty  of  perjury 
and  be  punished  as  is  now  provided  by  law.  (lb.,  Sec.  3.)  S.  R- 
S.,  Art.  5102. 

§  87.     When  assessments  to  be  made. 

Asisessors  of  taxes  shall,  between  the  first  of  January  and  the 
first  day  of  June  of  each  year,  proceed  to  take  a  list  of  taxable 
property,  real  and  personal,  in  his  county,  and  assess  the  value 
thereof  in  the  manner  following,  to-wit :  By  calling  upon  the 
person,  or  by  calling  at  the  office,  place  of  business  or  the  resi- 
dence of  the  person  and  listing  the  property  required  by  law  in 
his  name  and  requiring  the  person  to  make  a  statement  under 
oath,  as  prescribed  in  article  5098,  of  such  property  in  the  form 
hereinafter  prescribed.  (Acts  1876,  p.  265,  Sec.  9.) 
'  (1.)  When  a  pasture  lies  partly  in  two  counties  the  owner 
may  render  the  stock  in  the  county  of  his  residence.  Court  v. 
O'Connor,  65  Tex.  334.    S.  R.  S.,  Art.  5103. 

§  88.     Irregular  assessments  valid. 

"Should  any  property  be  listed  or  assessed  for  taxation  after 
the  first  day  of  June  of  any  year,  or  should  the  assessor  of  taxes 
or  his  deputy  fail  to  administer  the  requisite  oath  or  attest 
the  same  in  the  mode  prescribed  by  law,  or  should  the  party 
rendering  property  for  taxation  fail  to  subscribe  to  the  list,  yet 


88  ■  Taxation  in  Texas. 

the  assessment  shall  nevertheless  be  as  valid  and  binding  to  all 
intents  and  purposes  as  if  made  in  strict  pursuance  of  law." 
Sayles  R.  S.,  Art.  5104. 

When  an  assessment  roll  has  been  substantially  completed  be- 
fore passage  of  an  ordinance  levying  a  city  tax,  the  fact  that 
property  not  reported  by  owners  is  afterward  added  to  the  roll 
does  not  invalidate  the  tax.  Scollard  v.  City  of  Dallas,  42  S.  W. 
Rep.  640;  16  Tex.  Civ.  App.  620. 

Irregulartities  in  assessments,  when  not  resulting  from  fraud, 
will  not  render  the  taxes  founded  upon  such  assessments  void. 
State  V.  Bremond,  38  Tex.  116. 

If  an  assessment  of  taxes  be  valid,  the  fact  that  the  assess- 
ment was  not  placed  on  the  proper  roll  in  a  proper  manner  does 
not  vitiate  it,  the  obligation  to  pay  and  the  resulting  duty  to  en- 
force payment  by  the  state  remains.  Rosenberg  et  at.  v.  Weekes, 
67  Tex.  578;   City  of  San  Antonio  v.  Raley,  32  S.  W.  180. 

§  89.     Mistake  in  name  of  owner. 

"Under  Rev.  St.  1895,  Art.  5085,  providing  that  'no  assess- 
ment of  real  property  shall  be  considered  illegal  by  reason  of  the 
same  not  being  listed  or  assessed  in  the  name  of  the  owner  or 
owners  thereof,'  an  assessment  is  not  void  for  a  mistake  in  the 
name  of  the  owner."  Taher  v.  State,  85  S.  W.  R.,  836;  38  Tex. 
Civ.  App.  235. 

§  90.     Failure  to  list  for  taxation. 

"Failure  of  a  tax  assessor  to  list  certain  property  assessed  by 
him  and  present  the  list  to  the  commissioners'  court  for  approval 
did  not  render  the  assessment  void  in  the  absence  of  a  showing 
of  injury  resulting  from  such  failure  and  where  no  objection  was 
made  before  the  board  because  of  such  failure."  Haynes  v.  State, 
99  S.  W.  405 ;  44  Tex.  Civ.  App.  492. 

§  91.     Collector's  roll  no  part  of  assessment. 

"Under  the  ordinance  and  charter  of  the  City  of  San  Antonio 
the  assessor  is  not  required  to  assess  the  amount  of  taxes.  After 
the  board  of  revision  passes  upon  the  assessments,  the  ordinance 
provides  that  a  list  shall  be  prepared  by  the  assessor,  and  he 
shall  enter  therein  the  arnount  of  taxes  due  by  each  person,  and 
give  the  same  to  the  collector,  who  should  receipt  for  it. 


Assessments.  89 

The  collector's  roll  is  no  part  of  the  assessment.  It  is  the 
warrant  of  authority  of  the  collector  for  the  collection  of  taxes, 
and  has  nothing-  to  do  with  a  suit  for  taxes  and  to  foreclose  the 
constitutional  lien. 

If  the  assessor  failed  to  make  out  the  tax  roll  for  the  collector, 
that  did  not  release  the  person  who  owed  the  taxes  from  his 
liability  for  the  same.  Hernandez  v.  City  of  San  Antonio,  39  S. 
W.  1024;  15  Tex.  Civ.  App.  299. 

§  92.     Assessment  not  on  proper  roll. 

If  an  assessment  of  taxes  be  valid,  the  fact  that  the  assessment 
was  not  placed  on  the  proper  roll  in  a  proper  manner  does  not 
vitiate  it ;  the  obligation  to  pay,  and  the  resulting  duty  to  enforce 
payment  by  the  state,  remain.  Rosenberg  v.  Weekes,  67  Tex. 
580. 

§  93.     No  presumption  as  to  regularity  after  lapse  of  time. 

"The  mere  lapse  of  forty  years  is  not  sufficient  to  raise  a  pre- 
sumption that  the  laws  regulating  assessment  and  sale  for  taxes 
have  been  complied  with  so  as  to  supply  the  missing  proof  of  the 
power  of  the  sheriff  to  convey  the  legal  title  by  tax  deed ;  no 
proof  being  offered  of  such  facts  as  would  be  presumed  to  be 
in  the  custody  of  the  proper  officers  and  departments,  nor  any 
evidence  of  their  loss."  Telfener  v.  Dilliard,  7  S.  W.  847; 
70  Tex.  139. 

§  94.     Void  assessment — Remedies. 

"The  property  of  a  corporation  was  assessed  by  justices  of  the 
peace  as  provided  by  statute,  the  assessment  approved  by  the 
county  commissioners'  court,  and  the  tax  paid.  After  that  as- 
sessment the  county  assessor  made  what  purported  to  be  a  sup- 
plemental assessment,  under  directions  fromi  the  comptroller,  on 
property  not  assessed  by  the  justices,  but  in  fact  the  corpora- 
tion owned  no  property  which  had  not  been  assessed  by  them, 
and  the  assessor  obtained  the  amount  of  his  assessment  by  fixing 
a  value  on  the  same  property,  and  deducting  therefrom  the  jus- 
tices' valuation.  The  county  commissioners'  court  approved  his 
assessment.  Afterwards  the  corporation  applied  to  that  court  to 
be  relieved  from  the  assessment,  which  was  refused,  but  a  re- 
duction was  made.  The  tax  on  this  reduced  assessment  was 
levied  on  the  corporation's  property,  and  paid  to  the  collector 


90  Taxation  in  Texas. 

under  protest.  HELD,  that  whether  or  not  the  corporation  had 
notice  that  the  assessor's  assessment  would  be  and  was  made,  was 
immaterial,  the  assessment  being  utterly  void,  and  there  being  no 
address  from,  the  board  of  equalization,  whose  jurisdiction  ex- 
tended only  to  questions  of  valuation."  Galveston  County  v. 
Galveston  Gas  Company,  10  S.  W.  583 ;  72  Tex.  509. 

§  95.     Property  added  to  list  valid. 

"An  assessment  is  not  invalidated  by  the  fact  that  the  property 
w^as  added  by  the  assessor  to  the  inventory  of  the  taxpayer's 
estate  at  the  direction  of  the  board  of  equalization."  Ferris  v. 
Kemble,  12  S.  W.  689;  75  Tex.  476;  Connor  v.  City  of  Waxa- 
hachie,  13  S.  W.  30. 

§  96.     Credits  assessed  where. 

"Credits  are  taxable  at  the  place  of  residence  of  the  owner, 
and  not  at  the  place  where  they  may  be  deposited."  Ferris  v. 
Kemble,  12  S.  W.  689;  75  Tex.  476;  Connor  v.  City  of  Waxa- 
hachie,  13  S.  W.  30. 

§  97.     Showing  rate  of  assessment  by  custom. 

In  an  action  to  restrain  collection  of  taxes  on  national  bank 
shares,  as  being  higher  than  those  on  other  moneyed  capital,  a 
custom,  to  assess  property  at  fifty  per  cent,  of  its  value  is  not 
established  by  evidence  of  the  assessment  of  a  few  parties  at  that 
rate.  Engelke  v.  Schlender,   12  S.  W.  999;  75  Tex.   559. 

§  98.     Refused  to  render  list. 

"A  prosecution  under  Pen.  Code,  Art.  113,  for  refusal  to  render 
to  the  assessor  on  demand  a  list  of  taxable  property,  is  prema- 
ture where  Article  4716,  requiring  the  assessor  to  furnish  the 
board  of  equalization  with  a  list  of  such  persons,  etc.,  has  not 
been  pursued.  Mock  v.  State,  11  Tex.  App.  56,  followed."  Gal- 
hraith  v.  State,  26  S.  W.  502;  33  Tex.  Crim.  App.  331. 

§  99.     Tax  rolls — When  admitted  in  evidence. 

"Where  there  is  nothing  on  the  face  of  tax  rolls  to  indicate 
what  the  figures  denote  in  the  columns  set  apart  for  the  value  of 
property  and  the  amount  of  taxes,  the  meaning  of  the  figures 
may  be  shown  by  testimony,  and  the  rolls  admitted  in  evidence, 
in  an  action  to  enforce  a  tax  lien." 


Assessments.  91 

"The  primary  meaning  of  such    figures    would    be    dollars." 
Conklin  v.  City  of  El  Pasa,  S.  W.  Reporter,  Vol.  44,  p.  880. 
§  100.     Double  assessment. 

"Rev.  St.  1895,  Art  5076,  requires  that  in  listing  real  estate 
for  taxation  the  statement  shall  show  the  name  of  the  owner,  the 
abstract  number,  the  number  of  the  survey,  the  name  of  the 
original  grantee  of  the  certificate,  the  number  of  acres,  and  the 
value  of  the  land ;  the  number  of  the  lot  or  lots,  the  number  of 
the  block,  and  the  name  of  the  city  or  town,  and  the  value  of  the 
lots.  Held,  that  the  three  essential  requirements  were  the  name 
of  the  owner,  if  known,  the  description  of  the  property,  and  its 
value,  and  hence,  where  an  <:/wner  of  city  lots  listed  them  for  as- 
sessment as  fifteen  acres  of  the  J.  survey,  valued  at  $3,000,  and 
this  assessment  was  not  objected  to  either  by  the  assessor  or  the 
board  of  equalization,  and  the  owner  paid  taxes  levied  on  such 
assessment,  a  subsequent  assessment  of  the  property  by  lots  and 
blocks  to  unknown  owners  constituted  a  double  assessment,  in 
violation  of  article  5232L,  which  the  city  had  no  right  to  make." 
McMickle  V.  Rochelle,  US  S.  W.  74. 


CHAPTER  IV. 

ASSESSMENT  OE  RENDERED  PROPERTY. 

Sec.  Sec. 

101.  When    property    to    oe    ren-      112.  Rendition  of  real  estate. 

dered.  113.  Assessment  of  personal  prop- 

102.  How  to  be  rendered.  erty  by  rendition  by  banker, 

103.  Where  to  be  rendered.  broker,  etc. 

104.  To   be   rendered    in   but  one  114.  No     deductions     in     certain 

county.  cases. 

105.  Live   stock — When    and    how      115.  Assessments    and    collections 

rendered.  of  corporate  property. 

106.  Vessels — Where  listed.  116.  Assessments  in  owner's  name. 

107.  Railroads — Telegraphs,  etc.  117.  Relating  to  the  list  of  prop- 

108.  Listing  for  others.  erty   given   in   by   property 

109.  Shall  list  under  oath.  owners. 

110.  The    statement    and    its    re-  118.  Act   of   May    16,   1907,   relat- 

quisites.  ing  to  the  listing  and  valua- 

111.  Certain  credits  and  stocks  not  tion  of  property. 

to  be  listed. 

§  101.     When  property  to  be  rendered. 

All  property  shall  be  listed  for  taxation  between  January  1 
and  June  1  of  each  year,  when  required  by  the  assessor,  with 
reference  to  the  quantity  held  or  owned  on  the  first  day  of 
January  in  the  year  for  which  the  property  is  required  to  be 
listed  or  rendered.  Any  property  purchased  or  acquired  on  the 
first  day  of  January  shall  be  listed  by  or  for  the  person  purchas- 
ing or  acquiring  it.     R.  S.  5066. 

§  102.     How  to  be  rendered. 

All  property  shall  be  listed  or  rendered  in  the  manner  follow- 
ing: 

(1)  By  the  owner — Every  person  of  full  age  and  sound 
mind,  being  a  resident  of  this  state,  shall  list  all  of  his  real 
estate,  moneys,  credits,  bonds  or  stock  of  joint  stock  or  other 
companies  (when  the  property  of  such  company  is  not  assessed 
in  this  state),  moneys  loaned  or  invested,  annuities,  franchises, 
royalties,  and  all  other  property. 

(2)  As  agent-— He  shall  also  list  all  lands  or  other  real  estate, 
all  moneys  and  other  personal  property  invested,  loaned  or  other- 


Assessment  of  Rendered  Property.  93 

wise  controlled  by  him  as  agent  or  attorney,  or  on  account  of 
any  other  person,  company  or  corporation  whatsoever,  and  all 
moneys  deposited  subject  to  his  order,  check,  or  drafts  and 
credits  due  from  or  owing  by  any  person,  body  corporate  or 
politic. 

(3)  Minor — The  property  of  a  minor  child  shall  be  listed  by 
his  guardian,  or  by  the  person  having  such  property  in  charge. 

(4)  Wife — The  property  of  a  wife,  by  her  husband,  if  of 
sound  mind ;  if  not,  by  herself. 

(5)  Idiots — The  property  of  an  idiot  or  lunatic,  by  the  per- 
son having  charge  of  such  property. 

(6)  Cestui  que  trust — The  property  of  a  person  for  whose 
benefits  it  is  held  in  trust,  by  the  trustee  of  the  estate, 
of  a  deceased  person,  by  the  executor  or  administrator. 

(7)  Receivers — The  property  of  corporations  whose  assets 
are  in  the  hands  of  receivers,  by  such  rteceivers. 

(8)  Corporations — The  property  of  a  body  politic  or  cor- 
porate, by  the  president  or  proper  agent  or  officer  thereof. 

(9)  Copartnership — The  property  of  a  firm  or  company,  b^ 
the  president  or  proper  agent  or  officer  thereof. 

(10)  Manufactories — The  property  of  manufacturers  and 
others  in  the  hands  of  an  agent,  by  such  agent,  in  the  name  of 
his  principal,  as  real,  personal  and  merchandise. 

(11)  Nurseries — The  stock  of  nurseries,  growing  and  other- 
wise, in  the  hands  of  nurserymen,  shall  be  listed  and  assessed 
as  merchandise.    Acts  1876,  p.  2751 ;  Art.  5067,  Sayles  R.  S. 

§  103.     Where  to  be  rendered. 

All  property,  real  and  personal,  except  such  as  is  required 
to  be  listed  and  assessed  otherwise,  shall  be  listed  and  assessed 
in  the  county  where  it  is  situated,  and  all  personal  property 
subject  to  taxation  and  temporarily  removed  from  the  state  or 
county,  shall  be  listed  and  assessed  in  the  county  of  the  resi- 
dence of  the  owner  thereof,  or  in  the  county  where  the  principal 
office  of  such  owner  is  situated. 

(1)  There  is  no  special  provision  excepting  from  the  re- 
quirement of  the  statute  cattle  ranging  near  the  line  of  two 
counties ;  yet  the  statute  does  not  intend  to  impose  impossibilities 
or  to  work  injustice,  and  a  substantial  compliance  with  its  terms 
is  all  that  is  necessary.     If,  therefore,  one  whose  pasture  lies 


94  Taxation  in  Texas. 

partly  in  the  county  of  his  residence  and  partly  in  an  adjoining 
county  renders  for  taxation  his  cattle  feeding  upon  such  pas- 
ture, and  pays  the  tax  thereon,  in  the  county  where  he  resides 
and  where  the  entire  herd  feeding  in  his  pasture  is  controlled, 
he  complies  with  the  substantial  requirements  of  the  statute,  the 
state  receives  from  the  property  all  the  revenue  to  which  she  is 
entitled,  and  the  owner  is  not  overtaxed.  It  is  not  necessary 
in  such  cases,  before  applying  for  an  injunction,  to  seek  relief 
from  the  board  of  equalization,  or  other  officers  having  control 
in  matters  of  taxation.  That  it  was  unimportant  whether  the 
taxes  in  Refugio  county  were  paid  before  or  after  the  levy  which 
was  sought  to  be  enjoined.  It  was  sufficient  if  the  right  to  the 
taxes  had  fully  accrued  to  that  county,  and  this  was  effected  by 
the  previous  assessment  made  thereon.  Court  v.  O'Connor,  65 
Tex.  334;  Hardesty  v.  Fleming,  57  Tex.  400. 

(2)  Personal  property,  belonging  either  to  a  corporation  or  a 
natural  person,  must  be  assessed  and  the  taxes  thereon  paid  in 
the  county  where  it  is  situated,  unless  such  county  has  not  been 
organized,  in  which  event  the  assessment  must  be  made  and  the 
taxes  collected  in  the  county  to  which  it  is  attached  for  judicial 
purposes.    Cattle  Co.  v.  Faught,  69  Tex.  402;  5  S.  W.  494. 

(3)  Personal  property,  except  when  it  is  otherwise  provided, 
's  situated  where  its  owner  resides,  and  is  taxable  only  there. 
Tangible  personal  property  situated  in  any  town  or  city  of  this 
state  is  subject  to  taxation  at  the  place  where  it  is  situated.  In- 
tangible personal  property,  such  as  credits,  are  taxable  only  at 
the  place  of  residence  of  the  owner,  without  regard  to  where 
they  are  kept  or  deposited,  and  equally  without  regard  to  where 
they  are  deposited,  and  equally  without  regard  to  show  they 
were  earned  or  to  the  place  of  residence  of  the  debtor.  Ferris  v. 
Kimble,  75  T.  476;  12  S.  W.  R.  689.    Styles  R.  S.,  Art.  5068. 

§  104.     To  be  rendered  in  but  one  county. 

Lands  lying  on  county  boundaries,  which  have  not  been  ac- 
curately and  legally  surveyed,  determined  or  fixed,  shall  not 
be  assessed  or  taxed  in  more  than  one  county.  (Acts  1879,  p.  153  ; 
Amend.  1895,  No.  104,  Sen.  Jour.,  p.  485.) 

(1)  As  to  the  remedy  to  prevent  a  double  assessment,  see 
Rosenberg  v.  Weeks,  67  T.  578;  4  S.  W.  R.  899;  Chisholm  v. 
Adams,  71  Tex.  678;  10  S.  W.  336;  S.  R.  S.,  Art.  5069. 


Assessment  of  Rendered  Property.  95 

§  105.     Live-stock — When  and  how  rendered. 

All  persons,  companies  and  corporations  owning  pastures  in 
this  state  which  lie  on  county  boundaries  shall  be  required  to  list 
for  assessment  all  liye  stock  of  every  kind  owned  by  them  in 
said  pastures  in  the  several  counties  in  which  such  pastures  are 
situated,  listing  in  each  county  such  portion  of  said  stock  as  the 
land  in  such  county  is  of  the  whole  pasture.  All  persons,  com- 
panies and  corporations  owning  any  kind  of  live  stock  in  pas- 
tures not  their  own  shall  list  said  live  stock  in  the  several  counties 
in  which  such  pastures  are  situated  in  the  same  manner ;  and  in 
both  cases  the  tax  upon  such  live  stock  shall  be  paid  to  the 
tax  collectors  of  the  several  counties  in  which  such  live  stock 
is  listed  and  assessed.  (Acts  1889,  p.  29.)  S.  R.  S.,  Art.  5070. 

§  106.     Vessels — Where  listed. 

All  persons,  companies  and  corporations  in  this  state  owning 
steamboats,  sailing  vessels,  wharf-boats,  and  other  water  craft 
shall  be  required  to  list  the  same  for  assessment  and  taxation  in 
the  county  in  which  the  same  may  be  enrolled,  registered  or 
licensed.  (Acts  1876,  p.  277.)  S.  R.  S.,  Art.  5072. 

§  107.     Railroads,  Telegraphs,  etc. 

All  railroad,  telegraph,  plank-road  and  turnpike  companies 
shall  list  all  of  their  real  and  personal  property,  giving  the  num- 
ber of  miles  of  roadbed  and  line  in  the  county  where  such  road- 
bed and  line  is  situated,  at  the  full  and  true  value,  except  when 
such  company  may  own  personal  property  or  real  estate  in  an 
unorganized  county  or  district,  when  they  shall  list  such  property 
to  the  comptroller.  (lb.,  Sec.  II.)  S.  R.  S.,  Art  5073. 

§  108.     Listing  for  others. 

Persons  required  to  list  property  on  behalf  of  others  shall 
list  it  in  the  same  manner  in  which  they  are  required  to  list 
their  own,  but  they  shall  list  it  separately  from  their  own,  speci- 
fying in  each  case  the  name  of  the  person,  estate,  company  or 
corporation  to  whom  it  belongs.  (lb.,  p.  278,  Sec.  12.)  S.  R.  S., 
Art.  5074.      ' 

§  109.     Shall  list  under  oath. 

Each  person  required  by  law  to  list  property  shall  make  and 
sign  a  statement,  verified  by  his  oath,  as  required  by  law,  of  all 
property,  both  real  and  personal,  in  his  possession,  or  under  his 


96  Taxation  in  Texas. 

control,  and  which  he  is  required  to  list  for  taxation,  either 
as  owner  or  holder  thereof,  or  as  guardian,  parent,  husband, 
trustee,  executor,  administrator,  receiver,  accounting  officer, 
partner,  agent  or  factor.      (lb..  Sec.  13.)  S.  R.  S.,  Art  5075. 

§  110.     The  statement  and  its  requisites. 

Such  statement  shall  truly  and  distinctly  set  forth : 

(1)  The  name  of  the  owTier. 

(2)  The  abstract  number. 

(3)  The  number  of  the  survey. 

(4)  The  name  of  the  original  grantee  and  the  certificate. 

(5)  The  number  of  acres  and  the  value  of  the  land. 

(6)  The  number  of  the  lot  or  lots,  the  number  of  the  block, 
and  the  name  of  the  city  or  town,  and  the  value  of  the  lots. 

(7)  The  number  of  miles  of  railroad  in  the  county,  and  the 
value  of  the  railroads  and  appurtenances. 

(8)  Number  of  miles  of  telegraph  in  the  county,  and  the 
value  of  telegraph  and  appurtenances  in  the  county. 

(9)  Number    and  amount    of  -  land    certificates,    and    value 
thereof. 

( 10)  Number  of  horses  and  mules,  and  the  value  thereof, 

(11)  Number  of  cattle,  and  value  thereof. 

(12)  Number  of  jacks  and  jennets,  and  value  thereof. 

(13)  Number  of  sheep,  and  value  thereof. 

(14)  Number  of  goats,  and  value  thereof. 

(15)  Number  of  hogs  and  dogs,  and  value  thereof. 

(16)  Number  of  carriages,  buggies,  wagons,  or  bicycles,  of 
whatever  kind,  and  value  thereof. 

(17)  Number  of  sewing  machines  and  knitting  machines,  and 
value  thereof. 

(18)  Number  of  clocks  and  watches,  and  value  thereof. 

(19)  Number  of  organs,  melodeons,  pianofortes,  and  all  other 
musical  instruments  of  whatever  kind,  and  value  thereof. 

(20)  The  value  of  household  and  kitchen  furniture  over  and 
above  the  amount  of  two  hundred  and  fifty  dollars. 

(21)  Office  furniture,  and  the  value  thereof. 

(22)  The  value  of  gold  and  silver  plate. 

(23)  The  value  of  diamonds  and  jewelry. 

(24)  Every  annuity  or  royalty,    the    description    and    value 
thereof. 


Assessment  of  Rendered  Property,  97 

(25)  Number  of  steamboats,  sailing  vessels,  wharf  boats, 
barge,  or  other  water-craft,  and  value  thereof. 

(26)  The  value  of  goods,  wares  and  merchandise  of  every 
description  which  such  person  is  required  to  list  as  a  merchant, 
on  hand  on  the  first  day  of  January  of  each  year. 

(27)  Value  of  materials  and  manufactured  articles  which 
such  person  is  required  to  list  as  a  manufacturer. 

(28)  Value  of  manufacturers'  tools,  implements  and  ma- 
chinery other  than  boilers  and  engines,  which  shall  be  listed  as 
such. 

(29)  Number  of  steam  engines,  including  boilers,  and  value 
thereof. 

(30)  Amount  of  money,  of  bank,  banker,  broker  or  stock 
jobber. 

(31)  Amount  of  moneys  other  than  of  bank,  banker,  broker, 
or  stock  jobber. 

(32)  Amount  of  credits  other  than  bank,  banker,  broker,  or 
stock  jobber. 

(33)  Amount  and  value  of  bonds  and  stocks  other  than 
United  States  bonds. 

(34)  Amount  and  value  of  shares  of  capital  stock  (of)  com- 
panies and  associations  not  incorporated  by  the  laws  of  this 
state. 

(35)  Value  of  all  property  of  companies  and  corporations 
other  than  property  hereinbefore  enumerated. 

(36)  Value  of  stock  and  furniture  of  saloons,  hotels  and  eat- 
ing houses. 

(37)  Value  of  every  billiard,  pigeon-hole,  bagatelle,  or  other 
similar  tables,  together  with  the  number  thereof. 

(38)  Every  franchise,  the  description  and  value  thereof. 

(39)  Value  of  all  other  property  not  enumerated  above;  and 
all  property  enumerated  in  this  article  shall  be  taxable,  whether 
in  this  state  on  the  first  day  of  January  or  temporarily  removed 
therefrom.     See  Art.  5118.  (lb.,  Sec.  14;  1897,  p.  203.) 

(1)  Deposit  in  bank  subject  to  sight  check  regarded  as  cash. 
Campbell  v.  Wigghu,  20  S.  W.  730 ;  2  C.  A.  1. 

(2)  This  article,  in  prescribing  the  requisites  of  an  assess- 
ment for  state  and  county  taxes,  does  not  apply  to  assessments 
for  city  taxes.  Eitstis  v.  City  of  Henrietta,  39  S.  W,  567 ;  S.  R. 
S.,  Art.  5076. 

7 


98      '  Taxation  in  Texas. 

§  111.     Certain  credits  and  stocks  not  to  be  listed. 

No  person  shall  be  required  to  list  or  render  a  greater  portion 
of  his  credits  than  he  believes  will  be  received  or  can  be  collected,' 
or  to  include  in  his  statement  as  a  part  of  his  personal  property 
which  is  required  to  be  listed  any  share  or  portion  of  the  capital 
stock  or  property  of  any  company  or  corporation  which  is  re- 
quired to  Hst  or  return  its  capital  and  property  for  taxation.  (lb., 
Sec.  14.)  S.  R.  S.,  Art.  5077. 

§  112.     Rendition  of  real  estate. 

Persons  listing  or  rendering  real  estate  shall  make  a  statement, 
duly  signed  and  under  oath,  which  shall  truly  and  distinctly  set 
forth : 

(1)  The  name  of  the  owner,  abstract  number,  number  of 
survey,  the  number  of  certificate,  the  name  of  the  original  grantee, 
the  number  of  acres,  and  the  true  and  full  value  thereof. 

(2)  The  number  of  the  lot  and  block  and  the  true  and  full 
value  thereof,  together  with  the  name  of  the  town  or  city. 

(3)  When  the  name  of  the  original  grantee,  or  abstract  num- 
ber, or  number  of  certificate,  or  number  of  survey  is  unknown,  say 
"unknown,"  and  give  such  description  so  that  land  or  lot  can  be 
identified  and  the  true  and  full  value  thereof  can  be  determined, 
(lb.,  p.  279,  Sec.  15.)     S.  R.  S.,  Art.  5078. 

§  113.  Assessment  of  personal  property  by  rendition  by 
banker,  broker,  etc. 

Every  bank,  whether  of  issue  or  deposit,  banker,  broker,  dealer 
in  exchange,  or  stock  jobber,  shall  at  the  time  fixed  by  this  chap- 
ter for  listing  personal  property,  make  out  and  furnish  the  as- 
sessor of  taxes  a  sworn  statement,  showing : 

(1)  If  a  national  bank,  the  president  or  some  other  officer 
of  such  bank  shall  furnish  to  the  assessor  of  the  county  in  which 
such  bank  is  located  a  list  of  the  names  of  all  the  shareholders 
of  the  stock,  together  with  the  number  and  amount  of  the  shares 
of  each  stockholders  of  the  stock  in  said  bank,  and  the  share- 
holders of  the  stock  in  national  banks  shall  render  to  the  tax 
assessor  of  the  county  in  which  said  bank  is  located  the  number 
of  their  shares  and  the  true  and  full  value  thereof.  All  shares 
of  stocks  in  national  banks  not  rendered  to  the  assessor  of  taxes 
in  the  county  where  such  bank  is  located  within  the  time  pre- 
scribed by  law  for  listing  property  for  taxes,  shall  be  assessed 


Assessment  of  Rendered  Property.  <99 

by  the  assessor  against  the  owner  or  owners  thereof  as  unren- 
dered  property  is  assessed ;  but  the  tax  roll  shall  show  the  name 
of  the  owner  or  owners  thereof  as  per  statement  furnished  by 
the  president  or  other  officers  of  said  bank. 

(2)  National  banks  shall  render  all  other  bonds  and  stocks 
of  every  kind,  except  United  States  bonds,  and  all  shares  of  capi- 
tal stocks  or  joint  stock  or  stocks  of  other  companies  or  corpora- 
tions held  as  an  investment  or  in  any  way  representing  assets, 
together  with  all  other  personal  property  belonging  or  pertaining 
to  said  bank,  except  such  personal  property  as  is  specially  ex- 
empted from  taxation  by  the  laws  of  the  United  States. 

(3)  National  banks  shall  be  required  to  render  all  of  their 
real  estate  as  other  real  estate  is  rendered,  and  all  the  personal 
property  of  said  national  banks  herein  taxed  shall  be  valued 
as  other  personal  property  is  valued. 

(4)  All  other  banks,  bankers,  brokers  or  dealers  in  exchange, 
or  stock  jobbers  shall  render  their  list  in  the  following  manner: 

(1)  The  amount  of  money  on  hand  or  in  transit  or  in  the 
hands  of  other  banks,  bankers,  brokers  or  others  subject  to  draft, 
whether  the  same  be  in  or  out  of  the  state. 

(2)  The  amount  of  bills  receivable,  discounted  or  purchased 
and  other  credits  due  or  to  become  due,  including  accounts  re- 
ceivable, interest  accrued  but  not  due,  and  interest  due  and  un- 
paid. 

(3)  From  the  aggregate  amount  of  the  items  named  in  the 
first  and  second  of  the  last  two  subdivisions  shall  be  deducted 
the  amount  of  money  on  deposit. 

(4)  The  amount  of  bonds  and  stocks  of  every  kind,  except 
United  States  bonds,  and  all  shares  of  capital  stocks  or  joint 
stocks  of  other  companies  or  corporations  held  as  an  investment 
or  in  any  way  representing  assets. 

(5)  All  other  property  belonging  or  appertaining  to  said 
bank  or  business,  including  both  personal  property  and  real 
estate,  shall  be  listed  as  other  personal  and  real  estate,  (Acts 
1895,  p.  37.) 

( 1 )  All  the  property,  both  real  and  personal,  of  a  bank  char- 
tered under  the  laws  of  Texas  is  subject  to  taxation.  To  tax  the 
shares  of  such  a  bank,  which  are  but  evidence  of  an  interest  in 
property  already  taxed,  would  be  in  effect  to  impose  a  double 
taxation.    The  fact  that  the  bank  fails  to  render  its  property  for 


100  Taxation  in  Texas. 

taxation  will  not  authorize  an  assessor  to  list  for  taxation  its 
shares  of  stock.    Gillespie  z:  Gaston,  67  T.  599;  12  S.  W.  248. 

(2)  The  real  estate  of  a  bank  is  to  be  taken  in  its  own  name, 
and  its  personal  property  in  the  names  of  its  shareholders.  En- 
gelke  V.  Schlenker,  75  Tex.  559;  12  S.  W.  999. 

(3)  As  "to  mode  of  rendering  property  for  taxes,  see  Art. 
5080. 

(4)  By  "the  amount  of  money  on  deposit"  is  meant  the 
amount  of  debt  due  depositors,  and  not  money  belonging  to 
others  and  held  by  the  bank  as  bailee.  The  words  "except 
United  States  treasury  notes"  refer  to  money  on  hand  or  in 
transit,  and  not  to  "money  in  the  hands  of  other  banks,  bankers 
or  brokers,  or  others,  subject  to  draft."  Griifin  v.  Heard,  78  T. 
607 ;  14  S.  W.  892 ;  S.  R.  S.,  Art.  5079. 

§  114.     No  deductions  in  certain  cases. 

No  person,  company  or  corporation  shall  be  entitled  to  any 
deduction  on  account  of  any  bond,  note  or  obligation  of  any  kind 
given  to  any  mutual  insurance  company,  nor  on  account  of  any 
unpaid  subscription  to  any  religious,  literary,  scientific  or  chari- 
table institution  or  society,  nor  on  account  of  any  subscription  to 
or  installment  payable  on  the  capital  stock  of  any  company, 
whether  incorporated  or  unincorporated.  (Act  1876,  p.  280,  Sec. 
17.)  S.  R.  S.,  Art.  5081. 

§  115.     Assessments  and  collections  of  corporate  property. 

All  property  of  private  corporations,  except  in  cases  where  some 
other  provision  is  made  by  law,  shall  be  assessed  in  the  name 
of  the  corporation,  and  in  collecting  the  taxes  on  the  same  all 
the  personal  property  of  such  corporation  shall  be  liable  to  be 
seized  whenever  the  same  may  be  found  in  the  county,  and  sold 
in  the  same  manner  as  the  property  of  individuals  may  be  sold  for 
taxes.  All  statements  and  lists  made  by  corporations  that  are 
required  to  be  sworn  to  shall  be  verified  by  the  affidavit  and  sig- 
nature of  the  secretary  of  said  corporation,  and  if  they  have  no 
secretary,  the  officer,  who  discharges  the  duties  of  secretary  of 
said  corporation.  (Acts  1876,  p.  280,  Sees.  20,  21.)  S.  R.  S.,  Art. 
5084. 

« 

§  116.     Assessments  in  owner's  name. 

All  real  property  subject  to  taxation  shall  be  assessed  to  the 
owners  thereof  in  the  manner  herein  provided,  but  no  assess- 


Assessment  of  Rendered  Proper'!''?^.'"'''  >"  '  '    '101'' 

ment  of  real  property  shall  be  considered  illegal  by  reason  of  the 
same  not  being  listed  or  assessed  in  the  name  of  the  owners 
thereof.  (lb.,  Sec.  21.)  S.  R.  S.,  Art.  5085. 

§  117.     Relating   to   the   list   of   property   given   by   property 
owners. 

An  act  to  amend  Article  5076,  Title  CIV,  Chapter  2,  of  the 
Revised  Civil  Statutes  of  the  State  of  Texas,  relating  to  the 
list  of  property  subject  to  taxation  required  to  be  given  by 
property  owners. 

Section  1.  Be  it  enacted  by  the  Legislature  of  the  State 
of  Texas,  That  Article  5076,Title  CIV,  Chapter  2,  of  the  Re- 
vised Civil  Statutes  of  the  State  of  Texas,  be  so  amended  as 
to  hereafter  read  as  follows : 

Article  5076  (4681).  Such  statement  shall  truly  and  dis- 
tinctly set  forth: 

(I)  The  name  of  the  owner,  and  a  description  sufficient 
for  the  identification  of  any  real  estate  belonging  to  such 
owner. 

(2)  The  number  of  acres. 

(3)  The  value  of  the  land. 

(4)  The  number  of  the  lot  or  lots. 

(5)  The  number  of  the  block. 

(6)  The  value  of  town  lots. 

(7)  The  name  of  the  city  or  town. 

(8)  The  number  of  miles  of  railroad  in  the  county. 

(9)  The  value  of  railroads  and  appurtenances. 
(10)     Number  of  miles  of  telegraph  in  the  county. 

(II)  Value  of  telegraph  and  appurtenances  in  the  county. 

(12)  Number  and  amount  of  land  certificates  and  value 
thereof. 

(13)  Number  of  horses  and  mules  and  the  value  thereof. 

(14)  Number  of  cattle  and  the  value  thereof. 

(15)  Number  of  jacks  and  jennets  and  value  thereof. 

(16)  Number  of  sheep  and  value  thereof. 

(17)  Number  of  goats  and  value  thereof. 

(18)  Number  of  hogs  and     dogs  and  value  thereof. 

(19)  Number  of  carriages,  buggies,  wagons,  automobiles, 
bicycles,  motor  cycles,  or  other  vehicles  of  whatsoever  kind 
and  the  value  of  each  one  thereof. 


«1C&'    ''""''<  Taxation  IN  Texas. 

(20)  Number  of  sewing  machines  and  knitting  machines 
and  value  thereof. 

(21)  Number  of  clocks  and  watches  and  value  thereof. 

(22)  Number  of  organs,  melodeons,  piano  fortes,  and  all 
other  musical  instruments  of  whatsoever  kind,  and  value 
thereof. 

(23)  The  value  of  household  and  kitchen  furniture  over 
and  above  the  amount  of  two  hundred  and  fifty  dollars. 

(24)  Office  furniture  and  the  value  thereof. 

(25)  The  value  of  gold  and  silver  plate. 

(26)  The  value  of  diamonds  and  jewelry. 

(27)  Every  annuity  or  royalty,  the  description  and  value 
thereof. 

(28)  Number  of  steam  boats,  sailing  vessels,  wharf  boats, 
barges  or  other  water  craft,  and  the  value  thereof. 

(29)  The  value  of  goods,  wares  and  merchandise  of  every 
description  which  such  person  is  required  to  list  as  a  merchant 
(in  hand  on  the  first  day  of  January  of  each  year). 

(30)  Value  of  materials  and  manufactured  articles  which 
such  person  is  required  to  list  as  a  manufacturer. 

(31)  Value  of  manufacturers'  tools,  implements  and  ma- 
chinery other  than  boilers  and  engines,  which  shall  be  listed 
as  such. 

(32)  Number  of  steam  engines,  including  boilers,  and  the 
value  thereof. 

(33)  Amount  of  moneys  of  bank,  banker,  broker  or  stock 
jobber. 

(34)  Amount  of  credits  of  bank,  banker,  broker  or  stock 
jobber. 

(35)  Money  on  hand  or  on  deposit,  in  or  out  of  the  State, 
with  banks,  trust  companies,  corporations,  firms  or  individu- 
als, and  subject  to  order,  check  or  draft,  including  certificates 
of  deposit. 

(36)  Amount  of  credits  other  than  of  bank,  banker,  Droker 
or  stock  jobber. 

(37)  Amount  and  value  of  bonds  and  stocks  (other  than 
United  States  bonds). 

(38)  Amount  and  value  of  shares  of  capital  stock  compa- 
nies and  associations  not  incorporated  by  the  laws  of  this 
State. 


Assessment  of  Rendered  Property.  103 

(39)  Value  of  all  property  of  companies  and  corporations 
other  than  property  hereinbefore  enumerated. 

(40)  Value  of  stock  and  furniture  of  saloons,  hotels  and 
eating  houses. 

(41)  Value  of  every  billiard,  pigeon  hole,  bagatelle  or  other 
similar  tables,  together  with  the  number  thereof. 

(42)  Every  franchise,  the  description  and  value  thereof. 

(43)  Value  of  all  other  property  not  enumerated  above. 
Act  of  1905,  p.  357. 

§  118.     Act  of  May  16,  1907,  relating  to  the  listing  and  valua- 
tion of  property. 

Section  1.  That  Chapter  3,  Title  104,  Articles  5123  and  5124, 
Revised  Civil  Statutes  of  the  State  of  Texas,  be,  and  the  same 
are  hereby  amended  so  as  to  read  as  follows :  (and  adding  there- 
to articles  5124-a,  5124-b,  5124-c,  5124-d,  5124-e,  5124-f  and 
Article  5124-g). 

Article  5123.  That  hereafter  when  any  person,  firm  or  cor- 
poration renders  his,  their  or  its  property  in  this  state  for  taxa- 
tion to  any  tax  assessor,  and  makes  oath  as  to  the  kind,  char- 
acter, quality  and  quantity  of  such  property ;  and  the  said  ofificer 
accepting  said  rendition  from  such  person,  firm  or  corporation 
of  such  property  is  satisfied  that  it  is  correctly  and  properly 
valued  according  to  the  reasonable  cash  market  value  of  such 
property  on  the  market  at  the  time  of  its  rendition,  he  shall  list  the 
same  accordingly  but  if  the  assessor  is  satisfied  that  the  value 
is  below  the  reasonable  cash  market  value  of  such  property,  he 
shall  at  once  place  on  said  rendition  opposite  each  piece  of  prop- 
erty so  rendered  an  amount  equal  to  the  reasonable  cash  market 
value  of  such  property  at  the  time  of  its  rendition  and  if  such 
property  shall  be  found  to  have  no  market  value  by  such  officer, 
then  at  such  sum  as  said  officer  shall  deem  the  real  or  intrinsic 
value  of  the  property;  and  if  the  person  listing  such  property  or 
the  owner  thereof  is  not  satisfied  with  the  value  placed  on  th§ 
property  by  the  assessor,  he  shall  so  notify  the  assessor  and  if 
desiring  so  to  do  may  make  oath  before  the  assessor  that  the 
valuation  so  fixed  by  said  officer  on  said  property  is  excessive, 
then  it  shall  be  the  duty  of  such  officer  to  furnish  such  rendition, 
together  with  his  valuation  thereon  and  the  oath  of  such  person, 
firm  or  officer  of  any  corporation  if  any  such  oath  has  been  made, 
to  the  commissioners'  court  of  the  county  in  which  said  rendition 


104  Taxation  in  Texas. 

was  made,  which  court  shall  hear  evidence  arid  determine  the  true 
value  of  such  property  as  is  hereinafter  provided ;  and  in  this 
connection  it  is  provided  that  such  officer  or  court  shall  take  into 
consideration  what  said  property  could  have  been  sold  for  any 
time  within  six  months  next  before  the  rendition  of  said  property. 

Article  5124.  The  Boards  of  Equalization  shall  have  power 
and  it  is  made  their  official  duty  to  supervise  the  assessment  of 
their  respective  counties  and  if  satisfied  that  the  valuation  of 
any  property  is  not^in  accordance  with  the  laws  of  the  State,  to 
increase  or  diminish  the  same  and  to  affix  a  proper  valuation 
thereto,  as  provided  for  in  Art.  5123  of  this  Act,  and  when  any 
assessor  in  this  State  shall  have  furnished  said  court  with  the  ren- 
dition as  provided  for  in  Article  5123  of  this  Act,  it  shall  be  the 
duty  of  such  court  to  call  before  it  such  persons  as  in  its  judg- 
ment may  know  the  market  value  or  true  value  of  such  property, 
as  the  case  may  be,  by  proper  process,  who  shall  testify  under 
oath  the  character,  quality  and  quantity  of  such  property,  as  well 
as  the  value  thereof ;  said  court  after  hearing  the  evidence  shall 
fix  the  value  of  such  property  in  accordance  with  the  evidence 
so  introduced  and  as  provided  for  in  Art.  5123  of  this  Act;  and 
their  action  in  such  case  or  cases  shall  be  final. 

Art.  5124-a.  If  any  tax  assessor  in  this  State  shall  fail,  refuse 
or  neglect  to  place  upon  any  rendition  as  provided  for  in  Art. 
5123  of  this  Act,  the  true  value  or  market  value  in  accordance 
with  the  method  of  fixing  such  value  as  provided  for  herein  or 
shall  fail,  refuse  or  neglect  to  return  to  the  Commissioners'  Court 
such  rendition  together  with  the  oath  of  the  owner  or  person  list- 
ing such  property  for  taxes  when  such  oath  has  been  made,  as 
provided  for  in  this  Act  or  if  the  assessor  accepts  the  rendition 
from  any  person  rendering  property  for  taxation  without  reading 
to  such  person  the  oath  and  having  it  signed  and  sworn  to  as 
provided  by  law  such  failure,  refusal  or  neglect  shall  be  deemed 
malfeasance  on  the  part  of  such  officer  and  shall  be  cause  for 
his  removal  from  office. 

Art.  5124-b.  Every  tax  assessor  and  deputy  tax  assessor  in 
this  State  in  addition  to  the  oath  prescribed  by  the  Constitution 
of  this  State  shall,  before  entering  upon  the  duties  of  his  office 

take  and  subscribe  to  the  following  oath :     "I,  ,  tax 

assessor  (or  deputy  tax  assessor  as  the  case  may  be)  in  and  for 
County,  Texas,  do  solemnly  swear  that  I  will  person- 


Assessment  of  Rendered  Property.  105 

ally  view  and  "inspect  all  the  real  estate  and  improvements  thereon 
subject  to  taxation  lying  in  said  county  that  may  be  rendered  to 
me  for  taxation  by  any  corporation  or  individual,  or  by  their 
agent  or  representative  as  fully  as  may  be  practicable  and  that  I 
will  as  fully  as  is  practicable  view  and  inspect  all  other  taxable 
property  in  said  County  rendered  to  me  as  aforesaid,  that  I  will 
to  the  best  of  my  ability  make  a  true  estimate  of  the  cash  valuer 
the  market  value  of  such  property  if  such  property  has  a  market 
value,  and  if  it  has  no  market  value,  then  the  real  value  of  all  such 
property,  both  the  real  and  personal,  on  the  first  day  of  January, 
next  preceding  and  that  I  will  make  up  and  attach  to  each  assess- 
ment sheet  made  up  and  sworn  to  by  the  said  property  owners, 
their  agents  or  representatives,  a  true  assessment  and  valuation 
of  said  property,  together  with  a  memoranda  of  all  facts  which  I 
may  learn  bearing  upon  the  value  of  said  taxable  property,  and 
that  I  will  make  all  possible  inquiry  relative  to  the  true  value  of 
such  property  and  that  I  will  attach  said  memoranda  and  state- 
ment of  facts  that  I  may  ascertain  as  aforesaid  to  the  said  assess- 
ment sheets  of  the  respective  property  owners.  That  I  have 
read  and  understand  the  several  provisions  of  the  constitution  and 
laws  of  this  State  relative  to  the  valuation  of  taxable  property, 
and  that  I  will  faithfully  do  and  perform  every  duty  required  of 
me  as  tax  assessor  (or  deputy  tax  assessor)  by  the  constitution 
and  laws  of  this  State,  so  help  me  God."  This  oath  shall  be 
administered  by  the  County  Clerk  and  shall  be  in  duplicate ;  the 
original  shall  be  by  the  Clerk  filed  and  recorded  in  the  records  of 
the  County  and  the  duplicate  shall  be  retained  by  the  assessor  or 
deputy  as  the  case  may  be. 

Art.  5124-c.  When  a  Commissioners'  Court  in  this  State  con- 
venes as  a  board  of  equalization,  before  considering  the  subject  of 
equalization  of  property  values  for  the  purposes  of  taxation,  each 
member  of  the  Court,  including  the  County  Judge,  shall  take  and 

subscribe  to  the  following  oath :     "I,  ,  a  member  of 

the  board  of  equalization  of  County,  for  the  year 

A.  D.  ,  hereby  solemnly  swear  that  in  the  performance 

of  my  duties  as  a  member  of  such  board  for  said  year,  I  will  not 
vote  to  allow  any  taxable  property  to  stand  assessed  on  the  tax 
rolls  of  said  County  for  said  year  at  any  sum  which  I  believe 
to  be  less  than  its  true  market  value,  or  if  it  has  no  market  value, 
then  its  real  value;  that  I  will  faithfully  endeavor  and  as  mem- 


106  Taxation  in  Texas. 

ber  of  said  board  will  move  to  have  each  item  of  taxable  property 
which  I  believe  to  be  assessed  for  said  year  at  less  than  its  true 
market  value  or  real  value,  raised  on  the  tax  rolls  to  what  I 
believe  to  be  its  true  cash  market  value,  if  it  has  a  market  value, 
if  not,  then  to  its  real  value,  and  that  I  will  faithfully  endeavor 
to  have  the  assessed  valuation  of  all  property  subject  to  taxation 
within  said  County  stand  upon  the  tax  rolls  of  said  County  for 
said  year  at  its  true  cash  market  value  or,  if  it  has  no  market 
value,  then  its  real  value,  I  further  solemnly  swear  that  I  have 
read  and  understand  the  provisions  contained  in  the  constitution 
and  laws  of  this  State  relative  to  the  valuation  of  taxable  prop- 
erty and  that  I  will  faithfully  perform  all  the  duties  required  of 
me  under  the  constitution  and  laws  of  this  State,  so  help  me  God." 
Said  oath  shall  be  filed  and  recorded  in  the  Commissioners'  Court 
record  as  a  part  of  the  proceedings  of  that  term  of  Court. 

Art.  5124-d.  If  in  passing  upon  the  value  of  any  property  by  a 
Commissioners'  Court  sitting  as  a  board  of  equalization  in  this 
State,  the  Court  shall  fix  a  value  upon  any  property  for  the  pur- 
pose of  taxation  and  a  minority  of  said  Court  do  not  concur  in 
the  judgment  of  the  Court  the  Clerk  shall  record  in  the  minutes 
of  the  Court  the  names  of  the  members,  including  the  County 
Judge,  who  do  not  concur  in  fixing  such  values  (if  the  County 
Judge  shall  cast  the  deciding  vote  in  such  matter),  and  if  any 
tax  assessor  or  members  of  any  Commissioners'  Court  in  this 
State  shall  knowingly  fail  or  refuse  to  fix  the  value  of  property 
rendered  for  taxes  in  compliance  with  this  Act,  and  •  all  other 
laws  of  this  State,  such  failure,  neglect  or  refusal  shall  consti- 
tute malfeasance  in  office  on  the  part  of  such  assessor  or  mem- 
ber pr  members  of  said  Court,  and  such  failure,  neglect  or  refusal 
shall  be  cause  for  his  or  their  removal  from  office. 

Art.  S124-e.  Whenever  the  fact  is  brought  to  the  knowledge 
of  the  Attorney  General  of  this  State  that  any  tax  assessor,  dep- 
uty tax  assessor,  county  judge  or  member  of  the  Commissioners' 
Court  has  failed,  refused  or  neglected  to  comply  with  the  provi- 
sions of  this  Act,  he  shall  at  once  file  suit  for  the  removal  from 
office  of  such  officer  or  officers  thus  oflfending.  Such  proceed- 
ings for  the  removal  of  such  officer  or  officers  herein  provided 
for  shall  be  brought  in  the  district  court  of  the  county  of  such 
officer's  residence,  and  such  suit  shall  be  brought  by  the  Attorney 
General  of  the  State  or  under  his  direction.    Act.  30  Leg.  459. 


CHAPTER  V. 

ASSESSMENT  OF  UNRENDERED  PROPERTY. 

Sec.  Sec. 

119.  Unrendered— How     rendered.      123.  Unrendered  property  shall  be 

120.  Back    taxes    on    unrendered  ascertained,   etc.,   by   asses- 

lands,  sor. 

121.  Assessor  to  make  rolls  of  un-      124.  Unrendered   property   list   in 

rendered  property.  cities    to   be    examined    by 

122.  Tax  sale  of  unrendered  prop-  board. 

erty— How  it  should  be  as-      125.  Assessment   of  property   not 
sessed.  assessed  for  taxes. 

§119.     Unrendered — How  rendered. 

"And  all  lands  and  other  property  not  rendered  for  taxation 
by  the  owner  thereof  shall  be  assessed  at  its  fair  value  by  the 
proper  officer."    Constitution  of  Tex.,  Art.  8,  Sec.  11. 

The  proper  officer  referred  to  in  the  above  cited  constitutional 
provision  (Sec.  5,  Art.  8,  St.  Const.)  is  the  one  authorized  by  law 
to  make  the  assessment,  and  under  the  charter  and  ordinances  of 
the  City  of  Houston  the  only  proper  officer  prior  to  1882  was 
the  Board  of  Appraisement  and  since  1882  the  City  Assessor  and 
Collector  of  Taxes  of  the  City  of  Houston.  See  above  cited 
Charter  and  Ordinance  provisions.  San  Antonio  St.  Ry.  Co.  v. 
City  of  San  Antonio,  54  S.  W.  907,  22  Tex.  Civ.  App.  341. 

Each  assessment  must  be  for  one  year  only  where  the  law  pro- 
vides for  an  annual  assessment.  Copying  the  roll  of  a  former 
year  does  not  make  one ;  there  is  no  provision  in  the  Constitution 
requiring  an  assessment  to  be  made  on  the  roll  of  a  preceding  year 
.and  a  tax  based  upon  the  valuation  of  a  year  other  than  that  of 
the  year  for  which  it  was  originally  assessed  is  invalid.  1  Desty 
on  Taxation,  p.  460,  and  cases  cited ;  Cooley  on  Taxation,  p.  352. 

If  the  assessor  of  taxes  discovers  any  real  property  in  his  county 
subject  to  taxation  which  has  not  been  listed  to  him,  he  shall  list 
and  assess  such  property  in  the  manner  following,  to-wit : 

1.  The  name  of  the  owner;  if  unknown  say  "unknown." 

2.  Abstract  number  and  number  of  certificate. 

3.  Number  of  the  survey. 

4.  Name  of  the  original  grantee. 


108  Taxation  in  Texas, 

5.  Number  of  acres. 

6.  The  true  and  full  value  thereof. 

7.  The  number  of  lot  or  lots. 

8.  The  number  of  the  block. 

9.  The  true  and  full  value  thereof. 

10.  The  name  of  the  city  or  town,  and  give  such  other  de- 
scription of  the  lot  or  lots  or  parcels  of  land  as  may  be  necessary 
to  better  describe  the  same ;  and  such  assessment  shall  be  as  valid 
as  if  rendered  by  the  owner  thereof.    Art.  5119,  R.  S. 

§  120.     Back  taxes  on  unrendered  lands. 

In  all  cases  where  lands  or  real  estate  have  not  been  assessed 
for  taxation  for  any  year  since  the  year  one  thousand  eight  hun- 
dred and  seventy,  the  same  shall  be  assessed  and  the  taxes  thereon 
collected  in  the  mode  prescribed  in  this  chapter.  (Act.  Aug.  19, 
1876,  p.  214,  Sec.  1.)    R.  S.  Art.  5213. 

§  121.     Assessor  to  make  rolls  of  unrendered  property. 

The  assessor  of  taxes  shall,  after  his  list  of  unrendered  real 
and  personal  property  shall  have  been  examined,  corrected  and 
approved  by  the  board  of  equalization  as  provided  by  law,  prepare 
and  make  out  his  rolls  or  books  of  all  unrendered  real  and  per- 
sonal property  listed  by  him  in  the  manner  and  form  prescribed 
by  the  comptroller  of  the  State.  (Act  1876,  p.  271.)  R.  S.,  Art. 
5128. 

§  122.  Tax  sale  of  unrendered  property — How  it  should  be 
assessed. 
In  order  to  constitute  a  valid  tax  sale  of  unrendered  property 
subject  to  taxation,  it  is  essential  that  the  proper  officer  shall  sub- 
stantially comply  with  Section  14  of  "An  act  to  define  the  duties, 
powers,  qualifications  of  assessors  of  taxes,  and  to  regulate  their 
compensation."  Acts  of  1876,  p.  269,  R.  S.,  Art.  4711.  That 
section  provides  as  follows :  "If  the  assessor  of  taxes  discover 
any  real  property  in  his  county,  subject  to  taxation,  which  has 
not  been  listed  to  him,  he  shall  list  and  assess  such  property  in 
the  manner  following,  to-wit:  (I),  the  name  of  the  owner;  if 
unknown,  say  "unknown"  (of)  the  number  of  lot  or  lots  (8),  the 
number  of  the  block  (9),  the  name  of  the  city  or  town ;  and  give 
such  other  description  of  the  lot  or  lots,  or  parcels  of  land,  as 
may  be  necessary  to  better  describe  the  same,  and  such  assess- 


Assessment  of  Unrendered  Property.  109 

ment  shall  be  as  valid  as  if  rendered  by  the  owner  thereof." 
Where  an  assessment  was  made  in  a  blank  book,  which  failed 
to  comply  with  the  requirements  of  the  statute  above  quoted,  it 
does  not  aflford  such  evidence  of  a  valid  assessment  of  the  prop- 
erty as  will  support  a  sale  of  it  for  taxes.  Our  Supreme  Court 
in  the  case  of  House  v.  Stone,  64  Tex.  680,  commenting  on  this 
assessment,  says :  "It  contains  no  recitals  which  show  that  the 
assessor  did,  as  such  officer,  make  the  assessment  which  the  sched- 
ule and  plat  indicates  he  may  have  designed  to  make.  The  stat- 
ute contemplates  the  performlance  by  him  of  a  formal,  solemn 
act  which  is  to  constitute  the  basis  for  enforcing,  if  necessary 
for  the  collection  of  the  taxes  due  on  property,  the  divestiture  of 
the  owner's  title  to  it ;  and  act  should  clearly  manifest  upon  its 
face  its  character  and  intention  by  appropriate  recitals  and  state- 
ments, if  its  validity  as  an  assessment  is  left  to  stand  alone  upon 
such  schedule  disconnected  from  any  other  evidence  than  its  ex- 
istence in  a  blank  book  in  which  the  assessor  assessed  the  prop- 
erty in  question. 

Whether  such  assessments  are  made  by  the  officer  and  entered 
in  books  kept  as  records  in  his  office  or  otherwise,  the  evidence 
of  the  act  of  assessment  of  the  property  must  be  made  clearly 
to  appear.  If  entered  by  the  assessor  in  a  blank  book  kept  in 
his  office,  the  mere  use  of  such  a  book  for  such  a  purpose  in  no 
wise  dispenses  with  the  necessity  of  his  showing  in  his  entries 
that  he  officially  and  solemnly  acted  in  the  premises  by  a  recital 
of  the  doing  of  all  such  acts  as  were  necessary  to  be  done  in 
order  to  subject  the  property  thus  assessed  by  him  to  sale  for 
taxes  on  it. 

The  authority  for  the  officer's  making  the  assessment  is  that 
the  property  has  not  been  listed  to  him,  as  declared  in  Section 
14,  Acts  1876,  supra  (R.  S.,  Art.  4711),  and  we  think  the  assess- 
ment made  by  the  assessor  should  show,  in  some  appropriate  man- 
ner, that  it  was  done  by  him  in  accordance  with  such  authority, 
and  that  the  assessment  thus  made  was  of  property  falling  within 
the  category  of  such  that  was  thus  subject  to  taxation,  and  had 
accordingly  been  assessed  by  him. 

The  tabular  schedule  in  evidence  failed  to  show  that  it  was 
the  result  of  an  assessment  of  real  property  subject  to  taxation, 
made  by  the  assessor,  nor  did  it  otherwise  identify  the  property 
assessed,  unless  by  mere  inference  that  the  diagram  represented  a 


110  Taxation  in  Texas. 

block  of  lots,  and  that  the  columns  represented  the  owners  of 
them,  with  the  assessor's  valuation  thereof.  There  is  nothing  on 
the  face  of  the  paper  which  refers  the  matter  contained  in  it  to 
any  character  of  transaction,  or  which  connects  the  various  items 
of  names  and  figures  with  any  particular  kind  of  property.  Con- 
sidered abstractly,  by  itself,  it  might  as  well  refer  to  matters 
wholly  disconnected  with  the  subject  of  assessment  of  real  prop- 
erty for  unpaid  taxes,  or  unrendered  taxable  property. 

The  statute  itself  establishes  and  prescribes  the  rule  of  cer- 
tainty in  respect  to  the  identification  of  the  property  to  be  as- 
sessed, and  requires  the  assessor  to  list  and  assess  it  in  accord- 
ance therewith.  This  requirement  contemplates  a  written  list 
and  assessment,  and  it  must  be  sufificient  to  afford  a  basis  for  the 
further  proceedings  which  the  law  contemplates  may  result  in  a 
sale  of  the  property  thus  listed  and  assessed.  On  this  branch  of 
the  subject.  Burroughs  in  his  treatise  on  taxation.  Section  96, 
says :  "It  must  not  be  supposed  that  because,  in  the  class  of  cases 
we  are  considering,  the  land  is  proceeded  against  and  the  name 
of  the  owner  is  not  essential,  there  is  any  less  necessity  for  a  de- 
scription of  the  land  by  which  it  can  be  readily  identified.  There 
must  be  something  more  than  parol  proof  to  show  that  a  partic- 
ular tract  was  meant  to  be  assessed.  This  may  consist  of  a  name 
connected  with  a  title  of  some  kind  once  existing  in  connection 
with  the  land,  or  a  number,  or  a  known  designation,  and  ad- 
joinder,  a  settlement,  or  some  circumstance  to  lead  to  a  knowledge 
of  the  land  assessed.  It  does  not  help  the  matter  to  call  it  a  pro- 
ceeding in  rem.  A  thing  to  be  the  subject  of  a  legal  proceeding 
must  have  some  means  of  ascertainment.  Parol  evidence  can  not 
be  used  to  show  that  a  tract  on  the  list  was  intended  for  a  par- 
ticular tract.  Titles  which  should  rest  in  the  breast  of  the  officer 
making  the  levy  would  be  of  all  things  most  transitory.  The  lots 
of  land  must  be  definitely  and  distinctly  described,  and  parol 
proof  can  not  supply  the  deficiency  in  the  description  or  bound- 
aries. These  must  be  ascertained  from  what  is  written.  The 
question  is  not  one  of  intention,  but  one  of  fact — what  did  the 
assessors  do?  Which  is  the  specific  lot  on  which  the  tax  is  laid? 
These  questions  must  be  answered  from  the  record." 

The  list  and  assessment  fails  to  identify  with  any  degree  of 
certainty  the  lot  in  question,  nor  does  it  with  the  required  certainty 
indicate  "the  number  of  the  lot" — nor  "the  number  of  the  block" 


Assessment  of  Unrendered  Property.  Ill 

— nor  "the  true  and  full  value"  of  the  lot — nor  does  it  indicate 
"the  name  of  the  city  or  town,"  nor  "give  such  other  description 
of  the  lot  *  *  *  as  may  be  necessary  to  better  describe  the  same." 
The  instrument  of  writing  does  not  contain  in  it  anything  which 
affords  upon  its  face  the  particulars  of  designation  as  to  the 
above  named  matters,  which  the  law  contemplates  shall  be  shown. 
A  compliance  with  the  requirements  of  the  statute  was  one  of 
the  prerequisites  of  a  valid  sale  of  the  property,  and  a  noncom- 
pliance with  which,  and  the  statutes  regulating  sales  of  property 
for  taxes,  miust  be  deemed  fatal  to  the  defendants'  title.  House  v. 
Stone,  64  Tex.  677 ;  Moss  v.  Shear,  85  Amer.  Dec.  97. 

§  123.  Unrendered  property  shall  be  ascertained,  etc.,  by 
assessor. 
"It  shall  be  the  duty  of  the  assessor  and  collector,  at  the  expira- 
tion of  the  time  fixed  by  ordinance  for  the  rendition  of  property, 
to  ascertain  such  property  in  the  city  subject  to  taxation  as  has 
not  been  rendered,  and  the  same  shall  be  by  him  presented  to  the 
board  of  equalization  for  valuation  by  said  board,  and  the  same 
shall  be  by  him  entered  in  a  supplement  to  the  assessment  roll 
as  unknown,  specifying  the  year  for  which  said  tax  is  not  paid 
within  the  time  prescribed  by  law;  said  property  shall  be  sold 
at  the  same  time  and  with  like  effect  as  other  property.  Sayles 
R.  S.,  Art.  503. 

§  124.     Unrendered  property  list  in  cities  to  be  examined  by 
board. 

The  city  assessor  at  the  same  time  that  he  delivers  to  the  board 
of  equalization  his  lists  and  books  as  provided  in  Article  507  (see 
Sayles  Revised  Statutes)  shall  also  furnish  to  said  board  a  certified 
list  of  the  names  of  all  persons  who  either  refuse  to  swear  or 
qualify  or  to  sign  the  oath  or  affirmation  as  required  by  law, 
together  with  a  list  of  the  property  of  such  persons  situated  within 
the  corporate  limits  of  their  city,  as  made  by  him  through  other 
information,  and  said  board  shall  examine  said  lists  and  appraise 
the  property  so  listed  by  the  assessor.     Sayles  R.  S.,  Art.  509. 

§  125.     Assessment  of  property  not  assessed  for  taxes. 

An  act  to  authorize  and  require  the  Comptroller,  whenever  it 
shall  appear  that  any  lands  subject  to  taxation  in  any  county  have 
not  been  assessed  for  taxes  for  any  year  since,  and  including  the 


112  Taxation  in  Texas. 

year  1900,  to  make  a  list  thereof  and  deliver  the  same  to  the 
county  tax  assessor,  and  to  require  the  tax  assessor  to  assess  the 
same  for  taxes  for  such  years ;  to  provide  for  the  collection  of 
such  taxes,  making  it  a  misdemeanor  upon  the  part  of  the  tax 
assessor,  county  judge  and  members  of  the  Commissioners'  Court 
to  intentionally  or  willfully  fail  or  refuse  to  perform  any  of  the 
acts  herein  required ;  and  providing  for  prosecutions  of  such  of- 
fenses upon  information  in  any  county  of  the  judicial  district  to 
which  such  county  belongs  other  than  the  county  in  which  the 
offense  is  committed. 

Section  1.  Be  it  enacted  by  the  Legislature  of  the  State  of 
Texas :  That  whenever  it  shall  appear  to  the  Comptroller  of 
Public  Accounts  of  the  State  from  an  inspection  of  the  tax  rolls 
of  any  county  of  the  State,  or  otherwise,  that  any  lands  in  such 
county  subject  to  taxation  have  not  been  assessed  for  taxation 
for  any  year  since,  and  including  the  year  1900,  it  shall  be  his 
duty,  and  he  is  hereby  required  to  make  a  list  of  such  lands  and 
send  the  same  to  the  tax  collector  of  such  county  by  registered 
letter,  properly  addressed,  accompanying  such  list  with  instruc- 
tions to  such  tax  assessor  to  assess  such  lands  for  taxes  for  the 
years  for  which  they  have  not  been  assessed  as  shown  by  said 
list. 

Sec.  2.  Upon  receipt  of  such  list  the  tax  assessor  shall  immedi- 
ately post  a  copy  of  such  notice  and  list  at  the  courthouse  door 
of  his  county,  noting  upon  such  copy  the  date  of  such  posting; 
and  the  owners  of  the  lands  embraced  in  such  list  shall  have  the 
right  at  any  time  within  twenty  days  of  such  posting  to  render 
the  same  to  the  tax  assessor  for  the  taxes  for  the  years  for  which 
they  have  not  been  assessed  for  taxes,  or  for  any  of  such  years 
as  shown  by  such  notice,  in  the  same  manner  as  is  provided  for 
the  rendition  of  other  property  for  taxes  under  the  provisions  of 
the  General  Laws  for  that  purpose. 

Sec.  3.  Should  any  of  the  said  lands  remain  unrendered  by 
the  owners  or  owner  thereof,  under  the  provisions  of  Section  2 
of  this  Act,  for  any  of  the  years  for  which  the  same  have  not 
been  assessed  according  to  said  notice  and  lists,  for  twenty  days 
after  the  date  of  the  posting  of  such  notice,  it  shall  be  the  duty 
of  the  tax  assessor,  and  he  is  hereby  required,  immediately  upon 
the  expiration  of  such  time,  to  assess  for  taxes  at  their  true  value 
such  lands  so  remaining  unrendered  and  unassessed  for  each  of 


Assessment  of  Unrendered  Property.  113 

the  years  since  and  including  the  year  1900,  and  including  the 
year  such  lists  are  made  up  by  the  Comptroller,  listing  the  same 
in  the  name  of  "Unknown  Owners,"  and  charging  up  to  said 
lands  the  taxes,  State  and  county,  for  which  they  are  liable  for 
each  of  such  years,  valuing  such  lands  at  their  true  and  full  value 
as  provided  in  Article  5088,  Revised  Civil  Statutes.  If  any  of 
said  lands  are  lands  purchased  from  the  State  as  belonging  to  the 
school  fund,  the  university,  or  any  of  the  asylums  of  the  State, 
and  held  under  such  contract  of  purchase  upon  which  a  part  of 
the  purchase  money  is  still  due,  such  lands  being  unpatented,  no 
deduction  shall  be  made  in  the  value  of  said  lands  for,  or  on 
account  of,  such  unpaid  purchase  money,  but  they  shall  be  val- 
ued at  their  full  and  true  value  as  though  paid  out  and  patented. 

Sec.  4.  The  tax  assessor  shall  make  up  lists  showing  such 
assessments  and  deliver  the  same  to  the  county  judge,  who  shall 
at  once,  unless  a  regular  session  is  held  within  ten  days  there- 
after, call  a  meeting  of  the  Commissioners'  Court  in  special  ses- 
sion, as  a  board  of  equalization  for  the  purpose  of  passing  upon 
said  assessment  lists  in  the  manner  provided  in  case  of  regular 
assessments  in  so  far  as  the  provisions  of  the  statute  with  regard 
thereto  are  applicable.  It  shall  be  the  duty  of  the  Commis- 
sioners' Court  without  delay  to  act  upon  said  supplemental  as- 
sessment lists  as  to  the  value  of  the  property  embraced,  and  when 
said  values  have  been  equalized  as  required  by  law,  to  approve 
the  same,  and  to  approve  the  rolls  made  up  by  the  tax  assessor  in 
accordance  therewith ;  provided,  that  the  Commissioners'  Court 
shall  have  no  authority  to  alter  said  assessment  lists,  or  in  any 
way  interfere  with  such  assessments,  except  as  to  the  values  of 
property  embraced  therein,  in  equalizing  the  same  as  provided  by 
law,  and  to  strike  therefrom  any  lands  that  have  been  already 
assessed  for  taxes  at  their  true  market  value  for  the  years  for 
which  they  are  assessed  on  said  supplemental  rolls  and  such  taxes 
paid. 

Sec.  5.  After  such  supplemental  assessment  lists  as  are  herein 
provided  for  have  been  passed  upon  by  the  board  of  equalization 
as  herein  provided,  supplemental  tax  rolls  shall  be  prepared  by 
the  tax  assessor  and  approved  by  the  Commissioners'  Court  as 
is  required  by  law  in  case  of  the  regular  assessment  for  taxes, 
and  thereafter  the  taxes  due  according  to  such  supplemental  rolls 


114  Taxation  in  Texas.. 

shall  be  collected  as  in  case  of  other  taxes,  and  if  not  paid,  such 
proceedings  shall  be  had  for  their  collection  as  in  case  of  other 
taxes. 

Sec.  6.  If  any  tax  assessor,  or  the  county  judge,  or  any  mem- 
ber of  the  Commissioners'  Court  shall  intentionally  or  willfully 
neglect,  fail  or  refuse  to  perform  any  of  the  acts  herein  required 
to  be  done  by  such  officers,  he  shall  be  guilty  of  a  misdemeanor, 
and  on  conviction  thereof  shall  be  punished  by  fine  of  not  less 
than  one  hundred,  nor  more  than  five  hundred  dollars,  or  by  im- 
prisonment in  the  county  jail  for  not  less  than  one  month  nor 
more  than  one  year,  or  by  both  such  fine  arid  imprisonment.  Such 
offenses  may  be  prosecuted  upon  indictment  or  information  in 
any  county  of  the  judicial  district  to  which  such  county  belongs 
other  than  the  county  in  which  the  offense  is  committed. 

Sec.  7.  For  making  the  supplemental  assessments  provided 
herein  the  tax  assessor  shall  be  entitled  to  the  same  fees  to  be 
paid  in  the  same  manner  as  is  provided  by  law  in  case  of  regu- 
lar assessments.  This  act  is  cumulative  of  all  other  laws  upon 
the  same  subject.    Act  29  Leg.,  p.  321. 


CHAPTER  VI. 

RE-ASSESSMENT  OF  PROPERTY  FOR  TAXES,  WHICH 
HAS  NOT  BEEN  ASSESSED,  OR  WHICH  HAS  BEEN 
IMPROPERLY  ASSESSED. 

Sec.  Sec. 

126.  State  and  county  taxes.  131.  The    boards    to    value    such 

127.  Assessment  of  real  property  lands. 

for  previous  years.  132.  Three  rolls  to  be  made. 

128.  Back    taxes    on    unrendered      133.  Assessment  of  back  taxes  due 

lands.  cities  and  towns. 

129.  Comptroller    to    prepare    list      134.  Re-assessment. 

each  year.  135.  Act  of  1897  did  not  validate 

130.  Comptroller  to  forward  list.  assessment  for  back  years. 

§  126.    State  and  county  taxes — Assessment  of  property  not 
rendered. 

If  the  assessor  of  taxes  discovers  any  real  property  in  his 
county  subject  to  taxation  which  has  not  been  Hsted  to  him,  he 
shall  list  and  assess  such  property  in  the  manner  following,  to- 
wit : 

1.  The  name  of  the  owner;  if  unknown,  say  "unknown." 

2.  Abstract  number  and  number  of  certificate. 

3.  Number  of  the  survey. 

4.  Name  of  the  original  grantee. 

5.  Number  of  acres. 

6.  The  true  and  full  value  thereof. 

7.  The  number  of  lot  or  lots. 

8.  The  number  of  the  block. 

9.  The  true  and  full  value  thereof. 

10.  The  name  of  the  city  or  town,  and  give  such  other  de- 
scription of  the  lot  or  lots  or  parcels  of  land  as  may  be  necessary 
to  better  describe  the  same ;  and  such  assessment  shall  be  as  valid 
as  if  rendered  by  the  owner  thereof.    R,  S.  5119. 

§  127.     Assessment  of  real  property  for  previous  years. 

If  the  assessor  of  taxes  shall  discover  in  his  county  any  real 
property  which  has  not  been  assessed  or  rendered  for  taxation 
for  any  year  since  1870,  he  shall  list  and  assess  the  same  for 


116  Taxation  in  Texas. 

each  and  every  year  for  which  it  has  not  been  assessed,  in  the 
manner  prescribed  in  the  preceding  article,  and  such  assessment 
shall  be  as  valid  and  binding  as  though  it  had  been  rendered  by 
the  owner  thereof;  but  no  such  real  property  shall  be  assessed 
by  the  assessor  unless  he  has  ascertained  by  the  certificate  of  the 
comptroller  of  public  accounts  the  fact  that  the  records  of  his 
office  do  not  show  that  the  property  has  been  rendered  or  assessed 
for  the  year  in  which  he  assesses  it.    R.  S.,  Art.  5120. 

§  128.     Back  taxes  on  unrendered  lands. 

In  all  cases  where  lands  or  real  estate  have  not  been  assessed 
for  taxation  for  any  year  since  the  year  one  thousand  eight  hun- 
dred and  seventy,  the  same  shall  be  assessed  and  the  taxes  thereon 
collected  in  the  mode  prescribed  in  this  chapter.    R,  S.,  Art.  5213. 

§  129.     Comptroller  to  prepare  list  each  year. 

On  the  first  day  of  July  of  each  year  the  comptroller  of  public 
accounts  shall  cause  to  be  prepared  a  list  of  all  unrendered  lands 
in  each  county  subject  to  taxation  and  not  assessed,  in  which 
shall  be  specified  the  name  of  the  original  grantee,  the  abstract 
number,  the  number  of  acres,  the  year  for  which  such  lands  were 
unrendered,  and  the  rate  of  State  and  county  taxes  for  such  year. 
R.  S.,  Art.  5214. 

§  130.     Comptroller  to  forward  list 

Upon  completion  of  such  lists  the  comptroller  shall  forward 
the  same  to  the  board  of  equalization  of  the  respective  counties, 
with  the  verification  that  the  said  list  is  a  true  and  correct  state- 
ment of  all  the  unrendered  land  and  real  estate  in  

county  for  the  year ,  as  shown  by  the  records  of  his 

office.    R.  S.,  Art.  5215. 

§  131.     The  boards  to  value  such  lands. 

Upon  receipt  of  such  list  or  lists  by  the'  board  of  equalization 
of  such  county,  it  shall  be  their  duty  to  value  each  and  every 
tract  of  land  or  parcel  of  real  estate  so  mentioned  and  described 
in  the  said  lists  at  their  true  and  full  value,  as  near  as  can  be 
ascertained,  for  the  year  it  was  omitted  to  have  been  rendered. 
R.  S.,  Art.  5216. 

§  132.     Three  rolls  to  be  made. 

When  the  board  of  equalization  shall  have  completed  the  val- 
uation they  shall  cause  to  be  made  out  three  separate  rolls,  in 


Re-assessment  of  Property,  Etc.  117 

such  manner  as  may  be  prescribed  by  the  comptroller;  they  shall 
place  one  in  the  hands  of  the  collector  of  taxes,  forward  one  to 
the  comptroller  of  the  State,  and  file  one  in  the  office  of  the  county 
clerk  for  the  inspection  of  the  public.    R.  S.,  Art.  5217. 

§  133.     Assessment  of  back  taxes  due  cities  and  towns. 

Whenever  the  assessor  and  collector  shall  ascertain  that  any 
taxable  property,  real  or  personal,  has  not  been  assessed  for  the 
past  year,  he  shall  assess  the  same  in  a  supplement  to  his  next 
assessment  for  such  year,  stating  the  year  for  which  such  prop- 
erty should  have  been  assessed,  and  the  taxes  thereon  shall  be 
collected  in  the  same  manner  as  other  assessments.  In  all  cases 
where  any  party  has  omitted  to  render  property  for  taxation  for 
any  former  year  or  years,  and  such  taxes  have  not  been  paid, 
such  party  shall  give  such  property  in  for  assessment  for  the 
years  thus  omitted  and  pay  such  taxes,  and  the  assessor  and  col- 
lector shall  enter  all  such  property  in  a  supplement  to  his  next 
assessment  roll,  under  the  head  of  payments  for  former  years. 
Sayles  R.  S.,  Art.  504;  Acts  1875,  p.  113,  Sec.  97. 

§  134.     Re-assessment. 

Sec.  138  of  the  charter  of  the  city  of  Dallas  reads  as  follows: 
"If  the  assessor  shall  discover  any  real  or  personal  property  which 
was  subject  to  taxation  for  any  previous  year,  and  which  from 
any  cause  has  escaped  taxation  for  that  year,  he  shall  assess  the 
same  in  a  supplement  to  his  next  assessment  roll  at  the  same 
rate  under  which  such  property  should  have  been  assessed  for 
such  year,  and  the  taxes  thereon  shall  be  collected  in  the  same 
manner  as  other  assessments."  Under  this  section  property  which 
was  thus  assessed  on  a  supplemental  roll  was  held  to  be  a  valid 
assessment.  Scollard  v.  City  of  Dallas,  42  S.  W.  R.  640,  16  Tex. 
Civ.  App.  620. 

§  135.     Act  of  1897  did  not  validate- assessment  for  back  years. 

"It  was  not  competent  for  the  Legislature  by  the  act  of  1897 
to  make  valid  assessment  for  back  years  when  said  assessments 
were  invalid  at  the  time  they  were  made."  Conklin  v.  El  Paso, 
44  S.  W.  883;  Railway  v.  Poindexter,  7  S.  W.  317,  70  Tex. 
98 ;  Henderson  v.  White,  69  Tex.  103 ;  Morgan  v.  Smith,  70  Tex. 
637;  St.  Const.,  Art.  — ,  Sec.  16;  Sayles  Stats.,  Art.  5119  (4711)  ; 
Const.,  Art.  8,  Sees.  11,  15 ;  Clegg  v.  State,  42  Tex.  605 ;  Labadie 
V.  Dean,  47  Tex.  90. 


CHAPTER  VII. 

DELINQUENT  TAX  ACT  OF  1905,  PROVIDING  FOR 
THE  ASSESSMENT  AND  COLLECTION  OF  TAXES  IN 
CERTAIN  CASES. 

Sec.  Sec. 

136.  Taxes — Providing  for  the  as-      141.  Parties — Joinder. 

sessment  and  collection.  142.  County   attorney  cannot  con- 

137.  Act  29th  Legislature,  Ch,  130,  tract. 

Sec.  7,  valid.  142a.  Who    may    be    employed   to 

138.  Mandamus  to  turn  over  per-  make. 

centage  need  not  be  set  out      142b.  Cannot     transefer     tax     as 
in  detail.  compensation. 

139.  Tax  collector  duties  in  regard      142c.     Compensation  —  Quantum 

to  paying  percentage.  meruit. 

140.  Adequate  remedy. 

§  136.     Taxes — Providing  for  the  assessment  and  collection  of 
in  certain  cases. 

Acts  1905,  pp.  318-319-320. 
Chapter  130. 

An  act  to  provide  a  method  for  the  assessment  and  collection  of 
taxes  on  real  properties  omitted  from  the  tax  rolls  for  any  year 
or  years  since  the  year  1884,  and  a  method  of  re-assessing  and 
collecting  the  tax  on  real  properties  on  which  former  assess- 
ments are  found  to  be  invalid,  or  which  have  been  declared  in- 
valid by  any  district  court  for  any  reason  in  any  suit  to  enforce 
the  collection  of  taxes  on  said  properties.  To  validate  certain 
described  assessments  made  under  various  methods,  and  to  pro- 
mote generally  the  collection  of  all  delinquent  taxes. 

Section  1.  That  whenever  the  Commissioners'  Court  of  any 
county  in  this  State  shall  discover,  through  notice  from  the  tax 
collector  or  otherwise,  that  any  real  property  has  been  omitted 
from  the  tax  rolls  for  any  year  or  years  since  1884,  or  shall  find 
that  any  previous  assessment  on  any  real  property  for  the  years 
mentioned  are  invalid,  or  have  been  declared  invalid  for  any  rea- 
son by  any  district  court  in  a  suit  to  enforce  the  collection  of 
taxes  on  said  properties,  they  may,  at  any  meeting  of  the  court, 
order  a  list  of  such  properties  to  be  made  in  triplicate  and  fix  a 
compensation  therefor. 


Delinquent  Tax  of  1905,  Etc.  119 

The  said  list  to  show  a  complete  description  of  such  properties 
and  for  what  years  such  properties  were  omitted  from  the 'tax 
rolls,  or  for  what  years  the  assessments  are  found  to  be  invalid 
and  should  be  cancelled  and  re-assessed;  or  have  been  declared 
invalid  and  thereby  cancelled  by  any  district  court  in  a  suit  to 
enforce  the  collection  of  taxes ;  provided,  that  no  re-assessment  of 
any  property  shall  be  held  against  any  innocent  purchaser  of  the 
same,  if  the  tax  records  of  any  county  fail  to  show  any  assess- 
ment (for  any  year  so  re-assessed)  by  which  said  property  can 
be  identified  and  that  the  taxes  are  unpaid.  The  above  excep- 
tion, with  the  same  limitation,  shall  also  apply  as  to  all  past  judg- 
ments of  district  courts  cancelling  invalid  assessments. 

Sec.  2.  When  said  list  has  been  made  up  in  the  manner  pre- 
scribed in  Section  1,  the  Commissioners'  Court  may,  at  any  meet- 
ing, order  a  cancellation  of  such  properties  in  said  list  that  are 
shown  to  have  been  previously  assessed,  but  which  assessments 
are  found  to  be  invalid  and  have  not  been  cancelled  by  any  former 
order  of  the  Commissioners'  Court,  or  by  decree  of  any  district 
court,  and  shall  then  refer  such  list  of  properties  to  be  assessed 
or  re-assessed  to  the  tax  assessor,  who  shall  proceed  at  once  to 
make  an  assessment  of  all  said  properties,  from  the  data  given  by 
said  list  (the  certificate  of  the  State  Comptroller  as  to  assessments 
or  re-assessments  made  by  the  tax  assessor  shall  not  be  necessary 
as  required  under  Article  5120-a,  Revised  Statutes,  but  he  shall 
furnish  all  blank  forms  needed,  that  uniformity  may  be  had  in 
all  counties),  and  when  completed  shall  submit  the  same  to  the 
Commissioners'  Court,  who  shall  pass  upon  the  valuations  fixed 
by  him,  and  when  approved  as  to  the  values,  shall  cause  the  taxes 
to  be  computed  and  extended  at  the  tax  rate  in  effect  for  each 
separate  year  mentioned  in  said  list  and  in  addition  thereto,  shall 
cause  to  be  added  a  penalty  equal  in  amount  to  what  would  be 
six  per  cent  interest  to  the  date  of  making  said  list  from  the 
date  such  properties  would  have  been  delinquent  had  same  been 
properly  rendered  by  the  owner  thereof  at  the  time  and  for  the 
years  stated  in  said  list;  provided,  that  the  certificate  of  any 
tax  collector  of  this  State,  given  during  his  term  of  office,  that  all 
taxes  have  been  paid  to  the  date  of  such  certificate  on  any  certain 
piece  of  property,  which  is  fully  described  in  such  certificate, 
or  if  the  tax  rolls  of  any  county  fail  to  show  any  assessments 
against  such  property  sufficient  to  identify  it  and  that  the  same 


120  Taxation  in  Texas. 

was  unpaid  at  the  dates  such  rolls  may  have  been  examined  to  as- 
certain the  condition  of  any  property  as  to  taxes  unpaid,  this 
shall  be  a  bar  to  any  re-assessment  of  such  property  under  this 
Act  for  any  years  prior  to  the  date  of  such  certificate  or  such 
examinations;  provided  that  the  property  referred  to,  when  re- 
assessed, shall  be  held  by  an  innocent  purchaser,  who  has  relied 
upon  the  correctness  of  such  certificate  or  the  tax  rolls  heretofore 
referred  to. 

Sec.  3,  The  said  list,  when  complete  in  all  respects,  as  di- 
rected in  the  preceding  sections,  and  filed  with  the  tax  collector, 
shall  constitute  a  valid  lien  against  all  the  properties  mentioned 
in  said  list  for  the  full  amount  of  taxes,  penalties,  officers'  costs, 
advertising  and  six  per  cent  interest  from  the  date  of  said  list 
to  the  date  of  the  payment  of  the  full  sum  due  on  each  separate 
piece  of  property.  A  copy  of  said  list  and  all  cancellation  orders 
shall  be  furnished  to  the  State  Comptroller  and  a  copy  filed  with 
the  county  clerk. 

Sec.  4.  The  Commissioners'  Court  shall  proceed  to  have  such 
list  of  properties  advertised  in  the  manner  provided  in  Article 
5232-e,  Revised  Statutes,  as  amended  by  Section  5,  Chapter  103, 
Acts  of  the  Regular  Session  of  the  Twenty-fifth  Legislature,  after 
which  suit  may  be  filed  in  the  same  manner  as  provided  by  law 
for  the  enforced  collection  of  delinquent  taxes. 

Sec.  5.  In  all  cases  of  delinquent  taxes  of  unrendered  and  un- 
known property  where  there  appears  to  be  an  assessment  of  the 
same  at  a  valuation  excessive  and  unreasonable,  the  Commis- 
sioners' Court  of  any  county  shall  be  authorized  to  correct  or 
reduce  such  values  on  the  request  of  the  tax  collector  with  a  full 
statement  of  the  facts  in  each  case,  which  statement  and  the 
action  had  thereon  and  the  name  of  each  commissioner  voting  for 
or  against  the  reduction  in  valuation  asked  for  shall  be  entered 
upon  the  minutes  of  the  court  and  a  certified  copy  of.  the  action 
had  thereon  shall  be  furnished  to  the  Comptroller  of  the  State, 
and  when  the  values  are  so  corrected  or  reduced,  payment  of 
taxes  shall  be  accepted  in  accordance  with  such  reduction,  to 
which  shall  be  added  interest,  penalty,  advertising  and  costs,  as 
provided  by  law. 

Sec.  6.  If  the  Commissioners'  Court  of  any  county  in  this 
State  shall  deem  it  expedient  to  contract  with  any  person  to  en- 
force the  collection  of  any  delinquent  State  and  county  taxes, 


Delinquent  Tax  of  1905,  Etc.  121 

or  to  make  up  a  list  of  properties  referred  to  in  this  Act,  and  to 
enforce  the  collection  of  taxes  thereon  for  a  per  cent  of  the  taxes, 
penalty  and  interest  actually  collected  and  paid  to  the  collector  of 
taxes,  the  State  Comptroller  shall  be  authorized  to  join  in  said 
contract  and  allow  the  same  per  cent  for  State  taxes  that  is 
contracted  to  be  paid  by  the  Commissioners'  Court  for  the  col- 
lection of  county  taxes,  which  shall  not  exceed  ten  per  cent, 
except  in  case  of  absolute  necessity  to  employ  an  attorney  to  push 
the  filing  and  prosecution  of  tax  suits,  and  to  pay  for  report  of 
an  abstract  company  as  to  the  owner  of  property  assessed  as 
unknown  or  unrendered,  and  as  to  the  holder  of  any  liens  against 
the  same,  in  which  case  fifteen  per  cent  additional  may  be  allowed. 

It  shall  be  the  duty  of  the  county  attorneys  of  the  several  coun- 
ties (or  of  the  district  attorney  where  there  is  no  county  attorney) 
to  actively  assist  the  person  with  whom  the  contract  is  made,  by 
filing  and  pushing  to  a  speedy  conclusion  all  necessary  suits  for 
the  collection  of  delinquent  taxes  under  any  contract;  provided, 
that  where  any  district  or  county  attorney  shall  fail  or  refuse  and 
in  good  faith  to  prosecute  such  suits,  he  shall  not  be  entitled  to 
any  fees  from  such  suits;  provided,  that  where  any  district  or 
county  attorney  fails  or  refuses  to  bring  these  suits  when  re- 
quested to  do  so  by  the  Commissioners'  Court  or  by  the  person 
having  a  contract  herein  provided  for,  then  the  contractor  shall 
be  authorized  to  employ  some  other  attorney  to  file  these  suits 
in  the  name  of  the  State,  in  the  same  manner  provided  by  law  now 
to  enforce  the  collection  of  delinquent  taxes. 

Sec.  7.  In  all  suits  to  enforce  the  collection  of  delinquent 
taxes  where  the  assessment  of  any  property  for  any  year  is  invalid 
by  reason  of  the  failure  of  the  assessor  to  comply  with  the  pro- 
visions of  law  for  the  description  of  any  lot,  block  or  tract  of 
land,  or  to  give  a  separate  value  on  each  lot,  block  or  tract  of 
land,  known  as  "bulk  assessments,"  or  to  enter  upon  the  lists 
(similar  to  that  used  for  the  listing  of  rendered  property,  to  be 
signed  by  the  owner)  all  items  of  property  assessed  to  unknown 
owners,  all  such  assessments  are  hereby  validated  and  given  the 
same  force  and  effect  as  if  the  descriptions,  the  separate  valua- 
tions, and  the  listing,  were  in  all  respects  strictly  in  compliance 
with  the  law;  provided,  as  to  description,  that  the  descriptions 
given  are  sufiicient  to  identify  the  property ;  as  to  separate  values, 
that  the  valuations  and  the  taxes  shown  upon  the  tax  rolls   (in 


122  Taxation  in  Texas. 

what  are  called  "bulk  assessments")  can  be  fairly  prorated  to 
each  separate  lot,  block  or  tract  of  land;  and  as  to  listing,  that 
the  valuation  given  on  the  tax  rolls  upon  properties  assessed  as 
unknown  are  found  to  have  been  entered  upon  the  assessor's  block 
book  as  the  original  assessment,  instead  of  listing  as  in  rendered 
assessments,  and  then  entering  upon  the  tax  rolls. 

Sec.  8.  The  various  counties  of  this  State  which  have  not 
heretofore  made  and  published  a  delinquent  tax  record  under  the 
provisions  of  Chapter  103,  Acts  of  the  Regular  Session  of  the 
Twenty-fifth  Legislature,  are  hereby  authorized  and  it  shall  be 
their  duty  to  make  and  publish  the  same  to  date  hereof,  and 
when  so  done  it  shall  have  the  same  force  and  effect  as  if  made 
and  published  under  that  Act,  and  any  county  which  has  here- 
tofore made  a  delinquent  tax  record  for  any  number  of  years 
is  hereby  authorized  and  empowered  to  re-compile  the  same  to 
date  hereof  and  may  compile  each  year  thereafter  under  the  pro- 
visions of  said  Act.    Acts  1905,  pp.  318-319-320. 

§  137.     Acts  29th  Leg.,  Chap.  130,  Sec.  1,  valid. 

"Acts  29th  Legislature,  Chap.  130,  Sec.  7  (Gen.  Laws  1905,  p. 
320),  purporting  to  validate  certain  tax  assessments  defective 
for  insufficient  description  of  the  property,  or  for  failure  of  as- 
sessor to  list  the  property  for  the  approval  of  the  commissioners, 
was  not  invalid  as  being  retroactive  where  the  matters  omitted 
in  both  the  description  and  listing  were  formalities  not  essential 
to  the  protection  of  the  taxpayer,  and  could  be  dispensed  with 
by  the  Legislature  either  in  advance  of  the  assessment  or  by  an 
act  validating  the  same."  Haynes  v.  State,  99  S.  W.  405 ;  44  Tex. 
Civ.  App.  492. 

§  138.     Mandamus  to  turn  over  percentage  need  not  be  set 
out  in  detail. 

''The  petition  for  mandamus  to  compel  the  tax  collector  of  a 
county  to  pay  B.  10  per  cent  of  all  moneys  collected  by  B.  on  de- 
linquent tax  rolls,  alleging  a  contract  of  the  county  with  B.  to  so 
pay  him,  and  an  order  of  the  Commissioners'  Court  directing  de- 
fendant to  make  such  payment,  need  not  set  out  in  detail  the  con- 
tract, but  only  its  substance,  to  show  the  interest  of  plaintiffs, 
B,,  and  the  county  in  the  order  of  the  Commissioners'  Court, 
compliance  with  which  is  sought."  Bailey  v.  Aransas  County, 
102  S.  W.  1159,  46  Tex.  Civ.  App.  547. 


Delinquent  Tax  of  1905,  Etc.  123 

§  139.     Tax  collector  duties  in  regard  to  paying  percentage. 

"The  fact  that  the  tax  collector  of  a  county  is  not  a  party  to  a 
contract  of  the  county  with  B.  to  pay  him  a  certain  per  cent  of  all 
moneys  collected  by  him  on  delinquent  tax  rolls  does  not  affect 
the  duty  of  the  tax  collector  to  obey  an  order  of  the  Commis- 
sioners' Court  to  make  payment  to  B.  according  to  such  con- 
tract." 

"The  Commissioners'  Court,  under  its  general  powers  to  man- 
age the  county  finances,  and  direct  how  the  county  funds  shall 
be  paid  out,  is  authorized  to  order  the  tax  collector  of  the  county 
to  pay  B.,  according  to  a  contract  of  the  county  with  him,  a  cer- 
.tain  per  cent  on  all  moneys  collected  by  B.  on  delinquent. tax 
rolls,  such  commissions  being  costs  of  collection,  which  the  tax 
collector,  under  Rev.  St.  1895,  Art.  828,  authorizing  him  to 
retain  the  commission  due  himself  and  the  assessor,  and  to  make 
such  payments  as  he  'may  be  required  to  pay  out  of  any  money 
on  hand,'  is  not  bound  to  pay  to  the  treasurer." 

"The  fact  that  B.  may  be  authorized  under  the  contract  of  a 
county  with  him  to  pay  him  10  per  cent  of  the  moneys  collected 
by  him  does  not  justify  the  county  tax  collector  in  refusing  to 
obey  the  order  of  the  Commissioners'  Court  requiring  him  to  pay 
B.  10  per  cent  of  the  moneys  received  by  the  tax  collector  from 
collections  procured  by  B.  in  the  performance  of  his  contract ;  B. 
not  having  retained  anything  therefrom."  Bailey  v.  Aransas 
County,  102  S.  W.  1159,  46  Tex.  Civ.  App.  547. 

§  140.     Adequate  remedy. 

"An  exception  that  there  is  an  adequate  remedy  at  law  to  a  pe- 
tition for  mandamus  to  the  tax  collector  of  a  county  to  pay  B., 
according  to  a  contract  of  the  county  with  him  and  an  order  of 
the  Commissioners'  Court  to  such  tax  collector,  a  certain  per 
cent  of  all  moneys  collected  by  B.  on  delinquent  tax  rolls,  is  prop- 
erly overruled,  as,  though  B.  would  not  lose  his  right  to'  com- 
pensation for  services  under  his  contract  by  failure  of  the  tax  col- 
lector to  obey  the  order,  his  right  under  the  contract  to  have  his 
commissions  paid  out  of  the  collections  as  made  could  be  en- 
forced only  by  mandamus  to  the  collector."  Bailey  v.  Aransas 
County,  102  S.  W.  1159,  46  Tex.  Civ.  App.  547. 

§  141.     Parties — Joinder. 

"Where  a  county  contracts  to  pay  B.  10  per  cent  of  the  moneys 
collected  by  him  on  delinquent  tax  rolls,  and  the  Commissioners'- 


124  Taxation  in  Texas. 

Court  orders  the  county  tax  collector  to  make  such  payments  to 
B.,  the  interest  of  B.  and  the  county  is  such  as  to  authorize  them 
to  join  in  a  petition  to  compel  the  collector  to  comply  with  such 
order."  Bailey  v.  Aransas  County,  102  S.  W.  1159,  46  Tex.  Civ. 
App.  547. 

Parties  holding  contract  not  authorized  to  receive  taxes  and 
injunction  will  not  lie  to  restrain  them  from  so  receiving.  String- 
er V.  Holley,  105  S.  W.  1146. 

§  142.     County  attorney  cannot  contract. 

"Under  Acts  29th  Leg.,  p.  318,  Chap.  130,  authorizing  the 
Commissioners'  Court  to  contract  with  any  person  for  the  en- 
forcement of  delinquent  taxes,  or  to  make  up  delinquent  tax  lists, 
and  requiring  the  county  attorney  to  assist  the  person  with  whom 
the  county  may  contract  to  enforce  the  collection  of  the  delin- 
quent taxes,  for  a  percentage  thereof,  the  county  attorney  can 
not  contract  to  prepare  delinquent  tax  lists  and  collect  delinquent 
taxes."    Stringer  V.  Franklin  County,  123  S.  W.  1168. 

§  142a.     Who  may  be  employed  to  make 

"The  purpose  of  Delinquent  Tax  Act  (Acts  25th  Leg.,  p.  132, 
Chap.  103),  requiring  the  Commissioners'  Court  of  each  county 
to  cause  to  be  prepared  a  delinquent  tax  list,  and  to  have  the  same 
recorded  in  a  delinquent  tax  record,  is  to  empower  the  Com- 
missioners' Court  to  require  the  tax  collector  to  prepare  the 
list;  but,  as  such  duty  is  not  one  of  the  governmental  functions 
annexed  to  the  office,  the  Commissioners'  Court  may  employ  an- 
other to  do  the  work."  Stringer  v.  FKanklin  County,  123  S.  W. 
1168. 

§  142b.     Cannot  transfer  tax  as  compensation. 

"The  Commissioners'  Court  of  a  county  has  not  authority, 
under  Delinquent  Tax  Act  (Acts  25th  Leg.,  p.  132,  Chap.  103), 
requiring  the  Commissioners'  Court  to  cause  a  delinquent  tax  list 
to  be  prepared,  to  allow  an  individual,  as  compensation  for  pre- 
paring delinquent  tax  lists,  the  right  to  collect  and  retain  all  that 
portion  of  the  taxes  shown  on  the  delinquent  lists  to  belong  to 
the  county,  since  such  a  contract  attempts  to  transfer  the  official 
duty  of  the  tax  collector  in  collecting  delinquent  taxes,  and  since 
it  is  an  effort  to  barter  to  private  individuals  the  county  sources 
of  revenue." 


Delinquent  Tax  of  1905,  Etc.  125 

"A  contract  employing  an  individual  to  prepare  delinquent  tax 
lists,  as  authorized  by  the  Delinquent  Tax  Act  (Acts  25th  Leg., 
p.  132,  Chap.  103),  in  consideration  of  the  right  to  collect  and 
retain  all  of  the  delinquent  taxes  shown  by  the  delinquent  lists  to 
be  due  to  the  county,  if  valid  at  all,  operates  as  ah  assignment  to 
the  individual  of  the  claims  and  liens  which  the  county  had 
against  the  property  included  in  the  delinquent  lists ;  and  a  subse- 
quent attempt  by  the  Commissioners'  Court  to  rescind  after  the 
individual  had  performed  the  services  is  ineffectual,  and  the 
county  is  not  liable  on  account  thereof,  and  if  the  collector  of 
taxes  interferes  and  asserts  his  legal  right  to  collect  the  delin- 
quent taxes,  the  county  is  not  liable  for  more  than  the  sum  appro- 
priated by  it."    Stringer  v.  Franklin  County,  123  S.  W.  1168. 

§  142c.     Compensation — Quantum   meruit. 

"The  fact  that  the  consideration  agreed  on  in  a  contract  em- 
ploying an  individual  to  prepare  delinquent  tax  lists,  under  De- 
linquent Tax  Acts  (Acts  25th  Leg.,  p.  132,  Chap.  103),  empow- 
ering the  Commissioners'  Court  to  cause  delinquent  tax  list  to  be 
prepared,  is  in  excess  of  the  authority  of  the  Commissioners' 
Court,  and  for  that  reason  unenforceable,  does  not  preclude  a 
recovery  of  the  reasonable  value  of  the  services,  on  the  Com- 
missioners' Court  failing  to  exercise  the  statutory  authority  to  fix 
the  compensation." 

"The  statement  of  the  amount  which  one  employed  to  prepare 
delinquent  tax  lists  might  have  realized  under  his  contract,  if  he 
had  been  permitted  to  collect  delinquent  taxes,  as  authorized 
thereby,  is  not  a  statement  of  the  value  of  the  services  in  an 
action  for  a  quantum  meruit."  Stringer  vs.  Framklin  County,  123 
S.  W.  1168. 


CHAPTER  VIII. 
BULK  ASSESSMENT. 

Sec.  Sec. 

143.  Act  of  1897  power  to  correct      149.  Lot   must   be   separately    as- 

bulk  assessments.  sessed     except     when     ren- 

144.  Tract  or  lot  defined.  dered  by  owner. 

145.  Where  two  lots  belong  to  one      150.  Contiguous  tracts  held  by  one 

owner  and  form  one  parcel  title. 

of   land,    they    may    be    as-  151.  Taxes  lien  on  each  separate 

sessed  for  taxation  together.  tract  of  land — City  property 

146.  If  two  lots  are   used  as  one  no  exception. 

assessment  together  good.  152.  Owner    estopped    where    his 

147.  Assessment    when     approved  rendition  is  adopted  on  un- 

by  taxpayer   is  binding  al-  rendered  roll. 

though  irregular.  153.  Assessment  to  be  corrected — 

148.  Requisites  as  to  tax  roll,  do  Bulk. 

not  apply  to  assessment. 

§  143.     Act  of  1897 — Power  to  collect  bulk  assessments. 

Under  the  Act  of  1897  it  is  provided  that  the  tax  collector,  in 
preparing  the  delinquent  tax  record,  shall  be  required  in  bulk  as- 
sessments to  apportion  to  each  tract  or  lot  of  land  separately  its 
pro  rata  share  of  the  entire  tax,  penalty  and  cost.  Act  1897,  p. 
133,  Sec.  3. 

§  144.     Tract  or  lot  defined. 

The  State  statutes  under  the  head  of  Taxation  defines  the 
term  "tract  or  lot"  and  "piece  or  parcel"  of  real  property,  and 
"piece  of  land"  and  says  that  wherever  used  in  reference  to  tax- 
ation shall  be  held  to  mean  any  quantity  of  land  in  possession  of, 
owned  by,  or  recorded  as  the  property  of  the  same  claimant,  per- 
son, company  or  corporation.  (Act  1876,  p.  275,  Sec.  C.)  S. 
R.  S.,  Art.  5064. 

§  145.  Where  two  lots  belong  to  one  owner,  and  form  one 
parcel  of  land,  they  may  be  assessed  for  taxation 
together. 

Generally,  it  is  required  by  statute  that  separate  and  distinct 
parcels  of  land  shall  be  separately  assessed ;  and,  when  so  re- 
quired, it  is  imperative  that  the  requirement  should  meet  with 


Bulk  Assessment.  127 

strict  compliance  on  the  part  of  the  assessor.  No  difficulty  arises 
in  the  formulation  of  the  rule,  but  when  an  application  of  the  rule, 
and  a  determination  of  what  may  constitute  a  separate  piece  or 
parcel  of  land,  are  to  be  reached,  the  assessor  may  meet  with 
embarrassment  and  much  difficulty.  In  the  case  of  Jennings  v. 
Collins,  99  Mass.  29,  several  lots  were  assessed  together  to  one 
Packard,  and  the  court  said :  "If  the  lots  had  all  been  the  prop- 
erty of  Packard  at  the  time  the  tax  was  laid,  the  mere  fact  that 
he  had  divided  the  land  into  small  lots  for  the  purpose  of  sale 
would  not  require  the  assessors  to  make  a  separate  valuation  of 
each  lot.  But  where  lands  are  separated  either  by  the  use  or  pur- 
pose to  which  they  are  devoted,  or  by  the  mode  of  their  occupa- 
tion, or  are  disconnected  in  location,  a  tax  laid  generally  upon 
an  entire  valuation  can  not  be  made  a  lien  upon  each  separate 
parcel,  even  when  they  are  all  owned  and  occupied  by  the  same 
person."  The  soundness  of  the  rule  enunciated  has  never,  so  far 
as  we  know,  been  questioned,  and,  unless  in  conflict  with  our 
Constitution  and  statutes  on  the  subject,  should  receive  consid- 
eration at  the  hands  of  our  courts.  Under  the^  Constitution  of 
1869,  each  lot  or  separate  tract  of  land  was  liable  only  for  its 
own  taxes,  and  it  was  in  view  of  the  constitutional  provision 
that  the  decisions  were  rendered  in  Clegg  v.  State,  42  Tex.  605 ; 
State  V.  Baker,  49  Tex.  763 ;  and  Edmonson  v.  City  of  Galveston, 
53  Tex.  157.  There  is  no  such  provision  in  the  present  Constitu- 
tion, but  in  that  instrument  it  is  provided  that  the  annual  assess- 
ment on  landed  property  shall  be  special  lien  thereon,  and  that 
all  property,  real  and  personal,  belonging  to  any  delinquent  tax- 
payer, shall  be  liable  to  seizure  and  sale  for  the  payment  of  all  the 
taxes  and  penalties  due  by  such  delinquent.  Const.,  Art.  8,  Sec. 
15.  There  is  a  provision,  however,  to  the  effect  that  a  homestead 
shall  not  be  subject  to  forced  sale,  except  for  the  purchase  money 
or  taxes  assessed  thereon,  or  for  labor  and  material  expended 
thereon ;  and  it  was  in  view  of  that  provision  that  an  assessment 
was  held  invalid  that  assessed  other  lots  with  the  homestead,  no 
separate  value  being  given.  Jodon  v.  City  of  Brenham,  57  Tex. 
655.  In  the  case  of  Masterson  v.  Staie,  42  S.  W.  1003  (decided 
by  this  court),  it  was,  in  effect,  held  that  the  lien  for  taxes  at- 
tached to  all  the  land  owned  by  a  delinquent;  and  it  was  said, 
"We  know  of  no  provision  that  the  taxes  due  on  one  tract  in  an 
assessment  are  a  lien  on  that  tract  only."    In  that  case  a  lien  was 


128  Taxation  in  Texas. 

foreclose  on  81  tracts  of  land  to  pay  a  lump  sum  of  $684.27.  The 
decision  was  passed  upon,  and  a  writ  of  error  refused  by  the 
Supreme  Court ;  and,  the  point  referred  to  being  the  central  one 
in  the  case,  it  must  necessarily  have  met  the  approval  of  that 
court.  It  would  seem  that  what  has  been  said  would  dispose  of 
whatever  potency  or  effect  there  might  be  in  the  decisions  made 
under  the  old  Constitution.  Guerguin  v.  City  of  San  Antonio,  50 
S.  W.  141,  19  Tex.  Civ.  App.  98. 

In  the  last  cited  case  of  Guerguin  v.  City  of  San  Antonio  a 
writ  of  error  was  denied  by  the  Supreme  Court. 

§  146.  If  two  lots  are  used  as  one,  assessment  together  good. 
If  two  town  lots  are  occupied  and  used  as  one  lot,  the  buildings 
thereon  being  partly  on  each  they  may  be  sold  for  taxes  together 
as  one  lot ;  their  use  and  nature  determining  that  they  are  to  be 
regarded  as  one  lot.  Guerguin  v.  City  of  San  Antonio,  50  S.  W. 
R.  142,  19  Tex.  Civ.  App.  98;  Weofver  v.  Grant,  39  Iowa  294. 

§  147.  Assessment  when  approved  by  tax-paying  is  binding 
although  irregular. 
"Under  Art.  439  of  the  Revised  Statutes  the  city  of  Oak  Cliff 
passed  an  ordinance  requiring  all  persons  owning  property  with- 
in the  city,  under  penalty,  to  file  a  complete  inventory  of  all 
property  possessed  or  controlled  by  them  within  said  city  limits, 
not  exempt  from  taxation,  and  required  that  the  list  should  be 
verified  by  affidavit,  and  furnished  to  the  assessor  and  collector. 
Court  of  Civil  Appeals  says :  'The  property,  as  described  in  the 
original  petition  and  in  the  judgment,  was  assessed  by  the  asses- 
sor and  collector  upon  an  inventory  of  said  property  made  by 
plaintiffs  in  error  and  delivered  to  said  assessor  and  collector,  as 
required  by  law,  and  the  assessment  was  made  upon  said  prop- 
erty, describing  it  as  it  was  described  in  said  inventory.  In  most 
instances  where  there  are  two  or  more  lots  in  the  same  block 
they  are  unimproved  and  of  equal  value,  and  where  two  or  more 
lots  are  assessed  in  the  same  block  and  the  aggregate  amount  of 
taxes  on  the  same  is  sought  to  be  enforced,  the  aggregate  amount 
of  taxes  on  same  is  ascertained  by  adding  up  the  assessed  value 
of  each  of  said  lots.  Where  two  or  more  lots  are  assessed 
together  they  are  not  contiguous  and  joining,  unless  their  num- 
bers will  so  indicate;  where  the  numbers  are  consecutive  they 
are  joining;  when  not  consecutive  they  are  not  adjoining.'  " 


Bulk  Assessment.  129 

It  has  been  held,  where  separate  and  distinct  tracts  or  parcels 
of  land  are  assessed  together  as  one  tract,  and  the  aggregate  tax 
is  sought  to  be  enforced  against  the  several  parcels,  that  such 
assessments  were  void.  Clegg  v.  The  State,  42  Tex.  607;  The 
State  V.  Baker,  49  Tex.  763 ;  Edmonson  v.  The  City  of  Galves- 
ton, 53  Tex.  157;  Schleicher  v.  Gatlin,  85  Tex.  273.  In  none  of 
these  cases  is  it  made  to  appear  that  the  assessment  was  made  in 
accordance  with  the  inventory  rendered  by  the  taxpayer.  The 
cases  seem  to  discuss  the  question  of  the  validity  of  the  assess- 
ment upon  the  theory  that  it  is  alone  the  act  of  the  assessor. 

In  the  case  of  The  State  v.  Baker,  supra,  it  is  said :  "We  are 
not  to  be  understood,  however,  by  anything  which  we  now  or 
have  heretofore  said,  as  either  holding  or  intimating  that  either 
lot^  or  blocks  in  a  town  or  city,  or  originally  distinct  and  separate 
surveys  or  grants  in  the  country,  if  listed  and  assessed  by  the 
owner,  or  with  his  knowledge  and  approbation,  as  a  single  tract 
or  parcel  or  land,  may  not  be  subject  to  a  lien  for  the  aggregate 
tax  thus  assessed;  or  that  two  or  more  originally  separate  tracts 
or  parcels'  of  land,  either  in  town  or  the  country,  may  not  be  so 
used  and  occupied  by  the  owner  as  to  warrant  their  assessment 
as  a  single  tract.  This  question  is  not  presented  for  our  de- 
termination by  this  record,  and  it  will  be  time  enough  to  con- 
sider it  when  we  are  called  upon  to  do  so." 

All  of  the  cases  above  referred  to  upon  this  point  have  related 
to  State  and  not  city  taxes,  with  the  exception  of  the  case  of 
Edmonson  v.  Galveston,  supra.  This  case  holds  that  the  same 
rule  will  apply  to  the  assessment  of  city  taxes  as  that  which  ap- 
plies to  State  taxes. 

Under  the  authorities  above  quoted,  it  would  appear  that  the 
assessment  made  in  this  case  was  illegal,  unless  the  fact  that  the 
assessment  was  in  accordance  with  the  inventory  furnished  by 
plaintiffs  in  error  should  affect  the  question.  It  would  seem  to 
be  more  in  harmony  with  justice  and  sound  reason,  that  an  assess- 
ment made  in  the  manner  requested  or  approved  by  the  taxpayer 
would  be  a  valid  assessment.  There  might  be  reasons  which 
would  render  it  more  convenient  and  to  the  interest  of  the  tax- 
payer to  have  it  so  assessed  than  to  have  the  assessments  made 
against  the  various  parcels.  At  any  rate,  the  tax  assessor  as- 
sessed the  property  in  the  manner  in  which  the  taxpayer  presented 
it  to  him  for  assessment,  and  we  do  not  think  that  plaintiffs 
9 


130  Taxation  in  Texas. 

in  error  should  now  have  the  privilege  of  raising  objection  to  the 
manner  in  which  the  taxes  were  assessed  against  the  property. 
I  Blackwell  on  Tax  Titles,  Sec.  279;  Trust  Co.  v.  City  of  Oak 
Cliff,  8  T.  C.  A.,  p.  221. 

§  148.     Requisites  as  to  tax  roll — Do  not  apply  to  assessment. 

Ordinances  of  the  city  of  San  Antonio  requiring  the  tax  roll 
furnished  to  the  collector  to  describe  the  property  by  lot  and 
block,  and  state  the  value  of  each  parcel  separately,  does  not  apply 
to  the  assessment.  Guerguin  v.  City  of  San  Antonio,  50  S.  W. 
141,  19  Tex.  Civ.  App.  98. 

§  149.     Lot   must  be  separately  assessed   except  when  ren- 
dered by  owner. 

A  tax  can  not  be  recovered  upon  a  lot  or  block  of  land  situ- 
ated in  a  city,  when  such  lot  or  block  has  been  assessed  jointly 
with  some  other  lot  or  block  unless  the  property  had  been  ren- 
dered by  its  owner  to  be  assessed  jointly.  Without  such  rendi- 
tion by  the  owner,  each  lot  or  block  must  have  its  value  sepa- 
rately assessed  before  there  can  be  any  tax  levied  on  it.  Mc- 
Combs  V.  City  of  Rockport,  141  T.  C.  A.  561 ;  State  v.  Baker,  49 
Tex.  763. 

The  lots  into  which  town  or  city  blocks  are  subdivided  are  gen- 
erally regarded  as  separate  and  distinct  tracts  or  parcels  of  land, 
as  much  so  as  separate  and  distinct,  though  adjoining,  surveys  or 
grants  in  the  country ;  and  each  lot  should  be  separately  assessed, 
but  if  listed  or  assessed  by  the  owner,  or  with  knowledge  and 
approbation  as  a  single  tract,  is  subject  to  a  lien  for  the  aggre- 
gate tax  assessed.  State  v.  Baker,  49  Tex.  76Z ;  McCombs  v.  City 
of  Rockport,  37  S.  W.  988,  14  Tex.  Civ.  App.  560. 

"Where  the  statute  requires  the  taxpayer  to  render  an  inven- 
tory of  his  property,  it  will  be  presumed  that  he  furnished  the 
description  on  the  roll,  and  that  the  assessment  of  several  lots 
together  as  one  parcel  is  proper."  Turner  v.  City  of  Houston, 
S.  W.  Reporter,  Vol.  51,  p.  642,  21  Tex.  Civ.  App.  214. 

Where  lots  were  assessed  according  to  the  description  and 
grouping  in  the  owner's  inventory,  furnished  by  the  assessor, 
as  required  by  law,  although  such  assessment  was  irregular,  be- 
cause several  lots  were  assessed  together,  the  owner  can  not  ques- 
tion its  regularity. 


Bulk  Assessment.  131 

Where  property  taxed  for  city  purposes  is  otherwise  sufficient- 
ly described  on  the  assessment  rolls  according  to  the  description 
furnished  by  the  owner,  and  as  required  by  a  city  ordinance,  the 
failure  to  state  the  abstract  and  survey  numbers  does  not  invali- 
date the  assessment."  Dallas  Title  and  Trust  Co.  v.  City  of  Oak 
Cliff,  27  S.  W.,  p.  1036,  8  Tex.  Civ.  App.  217. 

Certain  realty  was  assessed  by  the  owner  as  six  separate  par- 
cels, and  though  these  were  divided  into  lots,  the  lots  in  each  were 
contiguous,  and  comprised  six  tracts  of  unimproved  land.  Held, 
that  since  the  owner,  instead  of  giving  the  value  of  each  lot, 
gave  the  aggregate  value  of  the  lots  in  each  of  the  six  tracts, 
and  as  the  Constitution  provides  that  a  lien  for  taxes  shall  at- 
tach to  all  the  property,  one  who  purchased  such  land  for  taxes 
could  not  object  that  the  assessment  was  void  because  it  did  not 
fix  the  value  of  each  lot  separately."  City  of  San  Antonio  v. 
Raley,  32  S.  W.  Rep.  181. 

An  assessment  is  not  void  because  the  property  is  not  accurately 
described  on  the  tax  rolls,  where  the  description  is  in  accord- 
ance with  the  list  furnished  by  the  owner  himself,  and  is  suffi- 
cient for  the  identification  of  the  property."  Eustis  v.  City  of 
Henrietta,  37  S.  W.  Rep.  632 ;  McCombs  v.  City  of  Rockport,  37 
S.  W.  Rep.  988,  14  Tex.  Civ.  App.  560. 

"Where  lots  were  assessed  according  to  the  description  and 
grouping  in  the  owner's  inventory  furnished  the  assessor,  as  re- 
quired by  law,  although  such  assessment  was  irregular  because 
several  lots  were  assessed  together,  the  owner  can  not  question 
its  regularity."  Dallas  Title  &  Trust  Co.  v.  Oak  Cliff,  27  S.  W. 
1036,  8  Tex.  Civ.  App.  217;  1  Blackwell  on  Tax  Titles,  Sec.  279. 

"If  a  taxpayer  lists  and  values  several  parcels  as  one,  and  they 
are  so  assessed,  he  can  not,  nor  can  his  grantee,  afterwards  ob- 
ject to  such  assessment."  Cooley  on  Taxation,  p.  403,  note;  Al- 
bany Brewing  Co.  v.  Meriden,  48  Conn.  243 ;  Lane  v.  Succession 
of  March,  33  La.  554;  Carter  v.  New  Orleans,  33  La.  An,  816; 
Black  on  Tax  Titles,  Sec,  103,  note  91. 

Separate  Assessment  of  Tracts. — "Under  Rev.  St.  1895,  Art. 
5088,  providing  that  each  separate  parcel  of  realty  shall  be  at  its 
true  value,  the  several  tracts  owned  by  a  property  owner  should 
be  assessed  separately,  and  not  as  a  whole."  Lufkin  Land  & 
Lumber  Co.  v.  Noble,  127  S.  W.  1093. 


132  Taxation  in  Texas. 

§  150.     Contiguous  tracts  held  by  one  title. 

"As  a  general  principle,  where  contiguous  tracts  of  land  are 
conveyed  and  held  by  one  title  as  one  tract,  and  are  used  and 
occupied  as  a  single  tract,  they  are  to  be  assessed  together  as  one 
tract  even  though  they  may  lie  in  different  municipal  divisions, 
and  though  they  may  be  separated  by  a  natural  boundary  such 
as  a  river,"  Black  on  Tax  Titles,  Sec.  103 ;  Hairston  v.  Stinson, 
13  Ared.  479;  Edwards  v.  Sims,  40  Kan.  235,  19  Pac.  R.  710; 
Dodge  V.  Emmons,  34  Kan.  732,  9  Pac.  R.  951. 

§  151.     Taxes  lien  on  each  separate  tract  of  land — City  prop- 
erty no  exception. 

"It  has  been  heretofore  decided  by  this  court  {Clegg  v.  The 
State,  42  Tex.  605;  The  State  v.  Baker,  49  Tfx.  763),  in  cases 
involving  State  taxes,  that  the  lien  given  by  the  Constitution  of 
1869  for  the  taxes  assessed  against  land  (Art.  12,  Sees,  19-22) 
is  a  charge  merely  upon  each  separate  tract  of  land  for  the  taxes 
assessed  thereon.  Unless,  therefore,  there  is  a  distinction  between 
city  and  State  taxes  which  renders  this  constitutional  restriction 
applicable  to  the  latter  and  not  to  the  former,  the  judgment  in 
this  case  was  unwarranted,  and  must  be  reversed." 

There  is  certainly  nothing  in  the  language  of  the  Constitution 
from  which  we  can  infer  that  a  different  or  more  enlarged  lien 
should  be  had  by  towns  and  cities  to  secure  and  enforce  the  pay- 
ment of  municipal  taxes  than  exists  for  those  assessed  in  favor 
of  the  State. 

The  Constitution  in  the  sections  referred  to  seems  to  be  deal- 
ing with  the  general  subject  of  taxation;  and  we  can  see  no 
reason  why  it  is  not  equally  applicable  to  assessments  by  coun- 
ties, cities  and  towns,  as  by  the  State,  nor  has  any  been  pointed 
out  or  attempted  to  be  shown  by  defendant  in  error."  Edmonson 
V.  City  of  Galveston,  53  Tex.  161 ;  Clegg  v.  State,  42  Tex.  605 ; 
State  V.  Baker,  49  Tex.  764;  McCoinbs  v.  City  of  Rockport,  37 
S.  W.  R.  988,  14  Tex.  Court  Civ.  App.  560;  Maddox  v.  City  of 
Rockport,  38  S.  W.  R.  397 ;  Jordan  vs.  City  of  Brenham,  57  Tex. 
657  ]  Schleicher,  Admr.,  v.  Gatlin,  85  Tex.  273-274. 

Each  lot  into  which  town  or  city  blocks  are  subdivided,  is  gen- 
erally regarded  as  a  separate  and  distinct  tract  or  parcel  of  land, 
as  much  so  as  separate  and  distinct,  though  adjoining,  surveys* 
or  grants  in  the  country,  and  should  ordinarily  be  separately 


Bulk  Assessment.  133 

assessed  for  the  taxes  with  which  it  is  properly  chargeable, — as 
was,  in  effect,  held  by  us  in  the  case  of  Clegg  v.  The  State,  42 
Tex.  605;  and  the  lien  given  by  the  Constitution  (Constitution 
1869,  Art.  12,  Sees.  19-22)  is  a  charge  merely  upon  each  separate 
tract  for  the  tax  assessed  against  it.  The  decision  in  that  case 
we  regard  as  decisive  of  this  one,  and  requires  an  affirmance  of 
the  judgment. 

We  are  not  to  be  understood,  however,  by  anything  which  we 
now  or  have  heretofore  said,  as  either  holding  or  intimating  that 
either  lots  or  blocks  in  a  town  or  city,  or  originally  distinct  and 
separate  surveys  or  grants  in  the  country,  if  listed  and  assessed 
by  the  owner,  or  with  his  knowledge  and  approbation,  as  a  single 
tract  or  parcel  of  land,  may  not  be  subject  to  a  lien  for  the  aggre- 
gate tax  thus  assessed;  or  that  tvvo  or  more  originally  separate 
tracts  or  parcels  of  land,  either  in  town  or  country,  may  not  be 
so  used  and  occupied  by  the  owner  as  to  warrant  their  assess- 
ment as  a  single  tract.     The  State  v.  Baker,  A9  Tex.  764. 

The  difference  between  our  present  Constitution  and  the  Con- 
stitution of  1869  and  the  case  of  State  v.  Baker  is  commented  on 
in  the  case  of  Guerguin  v.  City  of  San  Antonio,  50  S.  W.  141, 
cited  and  quoted. 

§  152.     Owner   estopped   where   his   rendition   is   adopted   on 
unrendered  roll. 

Owner  estopped  by  his  acts  in  assessing.  Unless  the  several 
lots  of  the  taxpayer  are  used  together  for  one  purpose  and  as 
one  piece  of  property,  he  is  entitled  to  have  each  lot  assessed 
separately;  but  it  has  been  uniformly  held  that,  if  the  owner 
renders  the  property  in  bulk,  he  is  estopped  from  claiming  that 
such  assessment  was  illegal.  Harris  v.  City  of  Houston,  21 
Tex.  Civ.  App.  432,  52  S.  W.  653 ;  Turner  v.  City  of  Houston, 
21  Tex.  Civ.  App.  214,  51  S.  W.  642;  McCombs  v.  City  of 
Rockport,  14  Tex.  Civ.  App.  560,  37  S.  W.  988;  Guerguin  v. 
City  of  San  Antonio,  19  Tex.  Civ.  App.  98,  SO  S.  W.  140.  In 
the  cases  cited  the  bulk  assignment  complained  of  was  for  years 
in  which  the  property  was  rendered  by  the  owner,  but  we  think 
the  same  principle  should  apply  when  the  city  in  assessing  un- 
rendered property  adopts  the  rendition  previously  made  by  the 
owner,  and  we  so  held  in  the  case  of  Railway  Co.  v.  City  of  Gal- 
veston, 77  S.  W.  269,  8  Tex.  372.  City  of  Houston  v.  Stewart, 
90  S..W.  53. 


134  Taxation  in  Texas. 

§  153.     Assessment  to  be  corrected — Bulk. 

Under  the  Acts  of  1897,  p.  133,  Sec.  3,  it  is  provided  that 
the  tax  collector,  in  preparing  the  delinquent  tax  record,  cor- 
rections and  omissions,  in  the  description  of  any  real  estate  em- 
braced in  such  list  or  lists  shall  be  made  so  that,  when  the 
corrections  are  made  and  the  omissions  are  supplied,  the  de- 
scription will  be  such  as  is  given  in  the  abstracts  of  all  the  titled 
and  patented  lands  in  the  State  of  Texas,  and  it  shall  be  re- 
quired in  bulk  assessments  to  apportion  to  each  tract  or  lot  of 
land  separately  its  pro  rata  share  of  the  entire  tax,  penalty  and 
cost. 


CHAPTER  IX. 

ASSESSMENT— DESCRIPTION  IN. 

Sec.  Sec. 

154.  Sufllciency  of  description.  sesses. 

(a)  Sufficient  against  owner      158.  Description— Failure   to   give 
good  as  to  purchaser.  abstract    and    survey    num- 

155.  Description — Literal     compli-  ber. 

ance  not  required.  159.  Description  —  Object        and 

156.  Sufficiency  of   description   in  purpose  of. 

rolls  no  variance  where  full  160.  Omission  of  certificate  or  sur- 

description  is  given  in  peti-  vey  number. 

tion.  161.  Description     sufficiency    of — 

157.  Rigid     description     not     re-  Parol     evidence     to     show 

quired     where     owner     as-  property  admissible. 

§  154.     Sufficiency  of  description. 

"An  assessment  for  taxation  of  property  described  as  follows : 

'Name  of  owner,  unknown.     No  of  acres,  .  No  of  lots, 

25x100.  No.  of  block,  61,'  etc.,  was  invalid;  the  number  of  the 
lot  not  being  given,  and  there  being  other  lots  of  the  same  di- 
mensions in  the  block." 

"An  assessment  for  taxation  of  property  .described  as  follows : 
'Name  of  owner,  G.  G.  Wright.  No.  lots,  25x100.  No.  block, 
61/  was  valid,  since  by  ascertaining  what  lot  Wright  owned  in 
the  block  it  could  be  definitely  ascertained  what  particular  lot 
was  meant." 

"No  more  particularity  of  description  of  property  is  required 
in  a  tax  assessment  than  in  a  conveyance  or  a  partition  decree." 
Slmighter  v.  City  of  Dallas,  107  S.  W.  48. 

Sufficient  against  owner,  good  as  to  purchaser. 

"An  assessment  of  real  estate,  which  sufficiently  describes  the 
property  as  against  the  owner,  is  sufficient  as  against  a  subse- 
quent purchaser."     Slaughter  v.  City  of  Dallas,  103  S.  W.  218. 

§  155.     Description — Literal  compliance  not  required. 

It  is  required  by  the  city  ordinances  of  the  city  of  San  An- 
tonio that  the  assessor  shall  make  out  a  roll  of  the  assessable 
property,  giving  "the  name  or  names  of  the  owners  of  property 
when  known,  the  description  of  property  assessed  sufficient  to 


136  Taxation  in  Texas. 

identify,  stating  the  lot,  block  or  part  thereof,  when  the  same 
is  real  property."  In  passing  upon  this  ordinance  the  Court  of 
Civil  Appeals,  in  the  case  of  Hernandez  v.  City  of  San  Antonio, 
39  S.  W.  1024,  says :  "In  assessing  the  lands  of  appellants,  the 
assessor  did  not  give  the  lot  or  block  numbers,  but  each  parcel 
of  land  is  described,  so  that  there  can  be  no  question  as  to  its 
identity,  and  the  separate  valuation  of  each  is  given.  It  is  the 
contention  of  appellants  that,  the  assessments  not  following 
strictly  the  terms  of  the  ordinance,  they  are  illegal  and  void.  In 
other  wjDrds,  it  is  insisted  that  unless  there  is  a-  literal  compli- 
ance with  the  requirements  of  the  ordinance  as  to  description, 
the  assessment  was  not  binding  upon  appellant. 

"The  purpose  of  the  ordinance  was,  doubtless,  to  require  such 
description  as  would  enable  the  owner  of  the  land  or  other  in- 
terested party  to  know  what  property  is  burdened  with  the  tax, 
and  any  description  that  would  supply  that  knowledge,  we  be- 
lieve, would  meet  the  spirit  of  the  requirements  of  the  ordinance. 

"The  description  of  the  property  undoubtedly  fixes  its  iden- 
tity, and  such  description  would  be  held  sufficient  in  a  deed  con- 
veying the  property.  We  are  not  disposed  to  hold  that  an  eva- 
sion of  the  payment  of  taxes  can  be  predicated  upon  any  such 
technicality."  Hernandez  v.  City  of  San  Antonio,  39  S.  W. 
1024;  15  Tex.  Civ.  App.  299. 

Where  the  whole  of  a  tract  of  land  is  assessed  for  taxes 
by  number  and  grant,  the  fact  that  the  survey  is  stated  to  contain 
640  acres,  when  it  really  contains  706  acres,  does  not  invalidate 
the  assessment  as  to  any  part  of  the  tract.  Kenson  v.  Gage,  79  S. 
W.  607. 

The  Supreme  Court  has  given  it  as  a  general  rule  which  gov- 
erns in  determining  the  sufficiency  of  the  description  of  property 
embraced  in  an  assessment  for  taxes  is  that  such  description  is 
sufficient  when  it  furnishes  the  means  by  which  the  property  can 
be  identified  from  the  description  itself,  or  by  the  use  of  extrinsic 
evidence  to  apply  that  description  to  the  property.  Eu-stis  v. 
City  of  Henrietta,  39  S.  W.  567;  90  Tex.  468. 

In  order  to  know  what  property  is  assessed,  resort  may  be 
had  to  extraneous  evidence  so  as  to  apply  the  description  given 
in  the  assessment  to  the  property  as  found  on  the  ground,  and 
thus  arrive  at  a  satisfactory  identification  of  the  property. 
Eustis  V.  City  of  Henrietta,  39  S.  W.  568.         , 


Assessment — Description  In.  137 

"Description  of  property,  as  contained  in  an  assessment,  as: 
'Store  S.  4th  and  Mary  Sts.,'  owned  by  'Moore  Bros.,'  is  suf- 
ficient for  the  purpose  of  an  action  to  enforce  a  Hen  for  the 
taxes,  there  being  no  difference  between  the  several  lots  as  to 
their  liability  for  taxes,  though  the  ordinance  provides  for  giv- 
ing the  numbers  of  the  block  and  lots."  Cooper  Grocery  Co.  v. 
City  of  Waco,  71  S.  W.  619;  30  Tex.  Civ.  App.  623. 

§  156.  Sufficiency  of  description  in  rolls  no  variance  where 
full  description  is  given  in  petition. 
"The  description  of  the  property  as  found  in  the  tax  rolls 
was  as  follows:  'Abstract  No.  112.  Original  grantee,  H.  Burk- 
hardt.  Chas.  D.  Grace,  owner.  Situated  in  city  of  Bonham,'  fol- 
lowed by  valuation  for  each  year,  and  'Acres  rendered,  27}^.'  It 
is  insisted  that  the  description  is  not  in  compliance  with  law, 
and  does  not  form  a  sufficient  basis  for  the  foreclosure  of  a  lien 
and  is  different  from  the  description  of  the  land  set  out  in  the 
petition.  The  description  of  the  land  in  the  assessment  of  1898 
was  made  by  the  plaintiff  in  error,  and  is  the  same  as  that  in 
the  assessment  of  the  other  years,  which  presumably  were  made 
by  him.  The  main  object  in  giving  a  description  of  the  property 
against  which  taxes  are  assessed  is  to  give  the  owner  notice  of 
such  charge  against  his  property.  The  rule  as  to  description  in 
an  assessment  is  held  in  Pennsylvania  to  be  that  'it  affords  the 
means  of  identification,  and  does  not  positively  mislead  the 
owner.'  Woodside  v.  Wilson,  32  Pa.  St.  52.  In  New  York  it 
is  said:  'An  assessment  of  nonresident  land  is  fatally  defective 
and  void  if  it  contain  such  a  falsity  in  the  designation  or  descrip- 
tion of  the  parcel  assessed  as  might  probably  mislead  the  owner, 
and  prevent  him  from  ascertaining  by  the  notices  that  his  land 
was  to  be  sold  or  redeemed.'  Tallman  v.  White,  2  N.  Y.  66.  The 
description  of  the  land  in  the  assessment  rolls  could  not  possi- 
bly have  had  any  tendency  to  mislead  the  owner,  because  he  ren- 
dered it  as  all  the  real  property  possessed  by  him  in  Bonham, 
and  he  testified  in  the  case  that  he  did  not  own  any  land  in  the 
Burkhardt  survey  except  the  land  described  in  the  petition.  Dal- 
las Title  &  Trust  Co.  v.  City  of  Oak  Cliff,  8  Tex.  Civ.  App.  217, 
27  S.  W.  l036;Scollard  v.  City  of  Dallas,  (Tex.  Civ.  App.)  42  S. 
W.  640.  In  the  case  of  State  v.  Farmer,  (Tex.  Sup.)  59  S.  W. 
541,  it  was  said:    'If  the  description  given  in  the  assessment  is 


138  Taxation  in  Texas. 

such  that,  by  applying  it  to  the  land,  it  can  be  identified,  it  is  a 
substantial  compliance  with  the  requirements  of  the  statute, 
and  the  lien  attached.'  See,  also,  Eustis  v.  City  of  Henrietta,  90 
Tex,  468,  39  S.  W.  567.  The  description  in  this  case  was  al- 
most a  literal  compliance  with  the  ordinance,  which  required, 
when  persons  rendered  their  property,  that  they  should  state  the 
name  of  the  owner,  the  abstract  number  of  survey,  number  of 
certificate,  original  grantee,  the  number  of  acres,  and  the  full 
and  true  valuation  thereof.  Article  499,  Rev.  St.,  gives  cities  and 
towns  full  authority  to  pass  such  ordinances  as  may  be  deemed 
proper  to  the  levying,  laying,  imposing,  assessing,  and  collecting 
taxes.  The  land  was  described  in  the  petition  by  field  notes,  and 
it  is  alleged  that  it  is  the  same  land  described  in  the  tax  rolls, 
and  is  the  only  land  owned  by  plaintiflF  in  error  in  Bonham  off 
the  Burkhardt  survey.  There  was  no  doubt  about  the  land  de- 
scribed in  the  petition  and  that  described  in  the  assessment  rolls 
being  one  and  the  same.  Eustis  v.  City  of  Henrietta,  (Tex.  Civ. 
App.)  37  S.  W.  632.  The  introduction  of  the  ordinance  which 
permitted  the  pleader  in  suits  for  delinquent  taxes  to  give  a 
perfect  description  of  land  not  fully  described  in  the  assessment 
roll,  and  to  identify  the  property  aliunde  the  roll,  was  not  errone- 
ous. It  conferred  no  right  that  was  not  possessed  without  it, 
and  in  no  event  could  its  admission  have  affected  plaintiff  in 
error  injuriously."  Grace  v.  City  of  Bonham,  63  S.  W.  158;  26 
Tex.  Civ.  App.  161. 

§  157.     Rigid  description  not  required  where  owner  assesses. 

"The  rigid  observance  of  statutory  requirements,  with  refer- 
ence to  the  description  of  property  listed  for  taxation  by  an 
assessor,  does  not  apply  where  the  owner  has  himself  listed  the 
property,  in  which  case  an  insufficient  description  would  not  con- 
stitute a  defense  to  proceedings  to  enforce  the  taxes."  McMickle 
V.  Rochelle,  125  S.  W.  74. 

The  authorities  are  plain  that  a  taxpayer  cannot  complain  of 
description  given  by  himself,  but  is  bound  by  it.  Jeffries  v.  Clark, 
22  Kan.  448 ;  Etistis  v.  Henrietta,  37  S.  W.  632. 

"In  an  action  to  foreclose  a  tax  lien,  the  defendant  can  not  de- 
feat the  tax  on  the  ground  that  the  property  was  not  sufficiently 
described  in  the  assessment  when  such  description  was  furnished 
to  the  assessor  by  the  defendant  himself."  Scollard  v.  City  of 
Dallas,  42  S.  W.  640;  16  Tex.  Civ.  App.  620. 


Assessment — Description  In.  139 

"An  assessment  is  not  void  because  the  property  is  not  accu- 
rately described  in  the  tax  rolls,  where  the  description  is  in  accord- 
ance with  the  list  furnished  by  the  owner  himself  and  is  sufficient 
for  the  identification  of  the  property."  Eustis  v.  City  of  Hen- 
rietta, Z7  S.  W.  632. 

"Rev.  St.  1895,  Art.  5098,  requires  persons  rendering  a  list  of 
taxable  property  to  swear  to  the  same;  Article  5103  directs  as- 
sessors to  make  a  list  of  taxable  property  belonging  to  each  per- 
son; Article  5126  directs  assessors  to  submit  all  such  lists  to  the 
board  of  equalization;  and  Article  5127  directs  assessors  to  make 
out  tax  rolls  from  the  list  as  corrected  by  the  board  of  equaliza- 
tion. Held,  that  the  tax  rolls  are  to  be  made. out  from  such  list 
made  up  from  information  furnished  by  property  owners." 
Lofton  V.  Miller,  118  S.  W.  911. 

§  158.     Description — Failure  to  give  abstract  and  survey  num- 
ber. 

"In  a  suit  to  foreclose  certain  tax  Hens  against  a  person  un- 
known, a  description  of  the  property  in  the  petition  as  'Lot  No. 
4,  of  Block  L.  of  Cockrell's  Fairland  addition  to  the  city  of  Dal- 
las' and  giving  the  name  of  the  book  and  page  of  the  record 
where  a  map  could  be  found,  showing  the  location  of  the  lot, 
was  sufficient,  though  it  did  not  give  the  name  of  the  survey 
of  which  the  property  was  a  part,  abstract  number,  certificate 
number,  survey  number,  and  number  of  acres  in  the  survey.'' 

"Rev.  St.  1895,  Art.  5119,  provides  that  the  assessor  shall  list 
the  realty  in  his  county  subject  to  taxation,  giving  the  name  of 
the  owner;  if  unknown,  say  'unknown';  abstract  number  and 
number  of  certificate,  number  of  survey,  name  of  the  original 
grantee,  number  of  acres,  value  thereof,  number  of  lot  or  lots, 
number  of  the  block,  value  thereof,  and  the  name  of  the  city  or 
town.  Article  5111  requires  the  assessor  to  make  an  abstract 
of  all  blocks  or  subdivisions  of  each  of  the  cities  or  towns  or 
villages  of  his  county  in  a  book  in  which  there  shall  be  blank 
spaces  for  diagrams  of  the  several  blocks  or  subdivisions.  Held, 
that  a  description  in  the  tax  rolls  of  certain  city  property  assessed 

as  'Owner  unknown,  abstract  No.  ,  certificate  No.  , 

survey  No. ,  original  grantee ,  acres  in  grant , 

city  or  town,  Dallas ;  number  of  lot,  4 ;  number  of  block,  L ;  value, 
$100,  Cockrell's  Fairland  Addition,'  was  sufficient,  since,  with 


140  Taxation  in  Texas. 

the  aid  of  the  acts  required  of  the  assessor  by  Article  5111,  the 
owner  or  other  persons  interested  would  be  enabled  to  know  upon 
what  particular  parcel  of  land  the  taxes  were  demanded."  Haynes 
V.  State,  99  S.  W.  405,  44  Tex.  Civ.  App.  492. 

§  159.     Description — Object  and  purpose  of 

,  The  main  objects  to  be  attained  in  the  description  are  (1) 
that  the  owner  may  know  what  land  is  assessed;  (2)  that  the 
public  may  know  what  land  is  to  be  sold;  and  (3)  that  the  pur- 
chaser may  know  what  land  he  buys.  Mr.  Cooley,  in  discussing 
the  question  of  description  in  assessment,  says:  "The  owner,  if 
it  has  been  prepared  by  himself,  will  read  it  in  connection  with 
his  own  knowledge  of  those  surrounding  circumstances  in  the 
light  of  which  he  has  framed  it;  but  an  equally  imperfect  de- 
scription prepared  by  another,  and  unaccompanied  by  such  cir- 
cumstances, would  fail  to  convey  to  his  mind  any  idea  that  his 
own  land  was  intended."  (Cooley  on  Taxation,  405.)  Again, 
the  same  learned  writer,  after  discussing  the  various  rules,  says : 
"A  more  satisfactory  rule  would  seem  to  be  that  'the  designation 
of  the  land  will  be  sufficient  if  it  affords  the  means  of  identifica- 
tion, and  does  not  positively  mislead  the  owner,  or  be  calculated  to 
mislead  him.'  "  Scollard  v.  City  of  Dallas,  42  S.  W.  640,  16  Tex. 
Civ.  App.  620 ;  Cooley  on  Taxation,  pp.  405  and  407. 

§  160.     Omission  of  certificate  or  survey  number. 

"Where  the  land  is  sufficiently  identified  therein,  the  assess- 
ment for  taxation  is  valid,  though  it  contains  no  certificate  or  sur- 
vey number."  Taber  v.  State,  85  S.  W.  836,  38  Tex.  Civ.  App. 
235. 

§  161.     Description — Sufficiency  of — Parol   evidence   to   show 
property  admissible. 

Mr.  S.  informs  me  that  he  has  a  contract  to  make  a  compiled 
delinquent  tax  record  for  Washington  County  and  has  requested 
me  to  prepare  and  submit  to  you  an  opinion  relative  to  the  valid- 
ity of  certain  assessments  appearing  delinquent  in  that  county. 
The  statement  he  submits  is  in  part  as  follows : 

"There  is  a  lot  of  misdescribed  city  property  which  can  be 
more  perfectly  described.     This  goes  into  the  record. 

"The  remaining  city  property  is  divided  into  three  classes,  or 
considered  under  three  heads,  which  may  be  illustrated  by  the 
following  examples : 


Assessment — ^Description  In.  141 

"First  Class :    Mose  Williams,  one  lot  in  Washington. 

"Second  Class :  Louisa  Radford,  Brenham,  one  lot  in  Barbee's 
Addition. 

"Second  Class:    Geo.  Ousley,  one  lot.  Burton. 

"Are  these  valued  assessments,  and  if  not,  and  no  better  de- 
scription can  be  had,  what  disposition  of  them  should  be  made?" 

Assuming  that  the  tax  levies  were  legal  and  that  the  procedure 
in  listing  and  assessing  the  property  was  regular,  the  question 
presented  as  to  the  validity  of  the  assessments  depends  entirely 
upon  the  description  of  the  property  assessed. 

"The  general  rule  which  governs  in  determining  the  sufficiency 
of  the  description  of  property  embraced  in  an  assessment  for 
taxes  is  that  such  description  is  sufficient  when  it  furnished  that 
means  by  which  the  property  can  be  identified  by  the  description 
itself  or  by  the  use  of  extrinsic  evidence  to  apply  that  description 
to  the  property."  Eitstis  et  al.  v.  City  of  Henrietta,  90  Tex.  471, 
and  authorities  cited. 

In  the  Eustis  case  the  property  in  the  assessment  involved  was 
described  by  giving  the  name  of  the  owner,  the  year  for  which 
the  assessment  was  made,  name  of  the  addition  and  number  of 
the  block,  being  the  entire  block.  There  was  no  addition  in  the 
city  by  the  name  given.  In  sustaining  this  assessment  the  Su- 
preme Court  said : 

"If  we  test  the  sufficiency  of  the  description  given  in  the  assess- 
ment made  in  the  present  case,  we  find  that  the  entire  block  is 
assessed  as  the  property  of  W.  G.  Eustis ;  that  it  is  situated  in  the 
city  of  Henrietta  and  is  Block  31  in  that  city  on  land  granted 
to  McKinney  and  Williams  or  in  an  addition  made  by  them  to 
the  city  of  Henrietta.  By  examination  of  the  records  we  learn 
that  the  city  was  located  in  whole  or  in  part,  as  the  case  may  be, 
upon  the  McKinney  and  Williams  Survey ;  that  there  was  a  block 
number  31  in  the  city  of  Henrietta  upon  that  survey  claimed  by 
W.  G.  Eustis,  and  also  that  there  is  no  addition  to  the  city  of 
Henrietta  known  as  the  McKinney  and  Williams  addition.  Thus, 
by  resorting  to  extraneous  evidence,  which  is  frequentlv  neces- 
sary, we  can  apply  the  description  given  in  the  assessment  to  the 
block  of  land  as  found  upon  the  ground  and  thus  arrive  at  a  sat- 
isfactory identification  of  the  property." 

In  the  case  of  Slaughter  v.  The  City  of  Dallas,  107  S.  W.  48, 
an  assessment  was  sustained  in  which  the  property  was  described 


142  Taxation  in  Texas. 

as  follows :  "Name  of  owner,  G.  G.  Wright.    No.  of  acres . 

No.  lots,  25x100.  No.  block,  61.  Value  ground,  $7,875.  Value 
of  improvements,  $2,000.  Description,  Main  Street."  After 
holding  the  assessment  of  this  property  invalid  for  the  year  1892 
under  the  same  description  set  out  above,  except  that  the  name 
of  the  owner  was  not  given  (the  reason  for  holding  the  assess- 
ment invalid  being  solely  that  the  name  of  the  owner  was  not 
given),  the  Supreme  Court  said : 

"But  with  regard  to  the  assessments  for  the  other  years  the 
case  is  different.  In  each  of  them  it  is  stated,  in  effect,  that  G. 
G.  Wright  is  the  owner  of  the  lot,  which  is  the  same  as  if  it  had 
been  added,  'which  lot  is  owned  by  G.  G.  Wright.'  By  ascertain- 
ing what  lot  Wright  owned  in  the  block,  it  can  be  definitely  as- 
certained what  particular  lot  is  meant,  and  the  rule,  'That  is  cer- 
tain which  can  be  made  certain,'  applies." 

After  referring  to  and  discussing  two  other  cases  on  the  suffi- 
ciency of  the  description  of  land  and  lots  in  a  probate  sale  and 
a  partition  decree,  the  court  goes  on  to  say: 

"Now,  can  any  more  particularity  be  required  in  a  tax  assess- 
ment than  in  a  conveyance  or  a  decree  of  partition?  We  think 
not.  There  are  no  degrees  in  certainty.  What  is  certain  in  the 
one  case  must  be  certain  in  the  other,  and  what  can  be  made  cer- 
tain in  the  one  case  can  be  made  certain  in  the  other.  If  any  dis- 
tinction should  be  made,  it  would  seem  to  be  in  favor  of  more 
generality  in  tax  assessments." 

In  the  case  of  Taffinder  v.  Merrell,  95  Tex.  95,  to  which  the 
Supreme  Court  refers  in  the  Slaughter  case,  the  property  involved 
was  described  in  the  partition  decree  merely  as  "Two  lots  in  the 
town  of  Hamilton.  Valued  at  $40  each."  It  was  shown  by 
testimony  that  the  lots  in  controversy  were  owned  by  Taffinder 
and  wife  and  that  they  owned  no  other  lots  in  that  town.  In 
passing  upon  the  sufficiency  of  this  description  the  court  says  in 
part: 

"We  are  of  the  opinion  that  the  description  of  the  two  lots 
in  Hamilton  in  the  decree  of  partition  in  estate  of  Mrs.  Bivens 
was  sufficient. 

"Under  the  decisions  of  this  court,  it  is  proper  to  look  not  only 
to  the  order  itself  but  to  the  inventory  and  to  the  report  of  the 
commissioners.  By  these  documents  and  by  the  order  taken  to- 
gether, the  property  referred  to,  not  merely  as  two  lots  in  the 


Assessment — Description  In.  143 

town  of  Hamilton,  but  as  the  two  lots  in  that  town  owned  by 
Taffinder  and  wife  as  community  property.  All  that  it  was  neces- 
sary to  do  in  order  to  identify  the  property  was  to  ascertain  the 
lots  which  were  thus  owned,  and  the  evidence  shows  that  this 
was  easily  done.  The  stated  ownership  of  the  lots  was  in  itself 
a  circumstance  of  description  which  led  to  the  identification." 

The  cases  to  which  I  have  referred  are  not  all  the  authorities 
on  this  question,  but  they  establish  the  proposition  that  any  de- 
scription is  sufficient  when  it  furnishes  the  means  by  which  the 
property  can  be  identified  from  the  description  itself,  or  by  the 
use  of  extrinsic  evidence  to  apply  that  description  to  the  prop- 
erty. 

In  the  assessment  of  Louisa  Radford,  if  it  can  be  affirmatively 
shown  that  she  owned  a  definitely  described  lot  in  Barbee's  addi- 
tion to  Brenham  in  the  year  for  which  the  assessment  was  made ; 
that  she  owned  no  other  lot  in  that  addition  during  that  year 
and  that  she  rendered  the  property  embraced  in  said  assessment, 
it  would  seem  that  this  would  bring  the  case  within  the  rule  an- 
nounced by  the  Supreme  Court  in  the  Slaughter  case.  In  that 
case,  the  name  of  the  owner  and  the  block  number  only  were 
given,  and  the  court  said:  "By  ascertaining  what  lot  Wright 
owned  in  the  block,  it  can  be  definitely  ascertained  what  partic- 
ular lot  is  meant,  and  the  rule,  'That  is  certain  which  can  be 
certain,'  applies."  The  holding  in  the  Taffinder  case  would  cer- 
tainly make  this  description  sufficient. 

The  description  in  illustrations  under  the  second  and  third 
classes  submitted  by  Mr.  Goodlett,  are  hardly  as  good  as  the  one 
in  the  first  class,  but  they  are  equally  as  definite  as  were  those  in 
the  Taffinder  v,  Merrell  case,  and  as  was  said  by  the  court  in 
the  Slaughter  case,  "If  any  distinction  should  be  made,  it  would 
seem  to  be  in  favor  of  more  generality  in  tax  assessments." 

I  think  the  description  in  each  of  the  cases  submitted  is  a  suffi- 
cient basis  for  a  suit  to  foreclose  the  tax  lien.  I  take  it,  that 
the  lots  owned  by  each  of  the  persons  named  in  the  assessments 
can  be  definitely  identified  from  the  county  records  and  city 
maps.  If  this  is  so,  and  proof  can  be  made  by  oral  testimony  or 
otherwise  that  these  were  the  only  lots  owned  by  such  persons  in 
that  town  during  the  year  for  which  the  assessment  was  made, 
I  think  the  State's  case  will  be  fully  made  out. 


144  Taxation  in  Texas. 

A  correct  description  of  the  property — such  as  will  identify 
it — as  well  as  the  description  as  shown  in  the  assessment,  should 
be  set  out  in  the  State's  petition,  and  then  such  other  appropri- 
ate allegations  should  be  made  as  would  show,  or  that  would 
admit  proof,  that  the  lot  described  in  the  assessment  is  the  same 
lot  covered  by  the  definite  description. 

If  the  point  should  be  made  that  the  provisions  of  the  statutes 
with  reference  to  the  description  of  city  property  for  the  purpose 
of  assessment  or  the  listing  thereof  have  not  been  complied  with, 
I  refer  you  to  Section  7,  Chapter  130,  page  320,  Acts  of  the  29th 
Legislature,  which  validates  assessments  defective  in  these  re- 
spects. This  act  was  passed  upon  and  sustained  by  the  Court  of 
Civil  Appeals  at  Dallas,  in  the  case  of  Haynes  v.  State,  99  S.  W. 
405.    In  sustaining  the  act,  the  court  said : 

"The  matters  omitted  in  both  the  description  and  listing  were 
formalities  not  in  any  way  essential  to  protect  the  taxpayer,  and 
could  have  been  dispensed  with  by  the  Legislature  in  advance, 
and  may  be  dispensed  with  by  an  act  validating  such  assess- 
ments," 

The  second  question  is,  if  the  assessments  are  invalid  and  no 
better  description  can  be  had,  what  disposition  of  them  should  be 
made? 

Sections  1  and  2  of  Chapter  130  of  the  Acts  of  the  29th  Leg- 
islature authorize  the  Commissioners'  Court  to  cancel  invalid  as- 
sessments and  cause  the  property  to  be  re-assessed  for  the  years 
for  which  the  assessments  are  cancelled. 

If  the  property  upon  which  the  invalid  assessments  stand  still 
belong  to  the  persons  against  whom  it  is  assessed,  I  am  of  the 
opinion  that  you  would  have  no  difficulty  in  enforcing  collection 
upon  a  re-assessment,  but  if  it  has  changed  hands,  the  case  will 
be  different. 

Section  1  of  said  act  contains  the  following  provision: 

"Provided,  that  no  re-assessment  of  any  property  shall  be  held 
against  any  innocent  purchaser  of  the  ^same,  if  the  tax  records 
of  any  county  fail  to  show  any  assessment  (for  any  year  so  re- 
assessed) by  which  said  property  can  be  identified,  and  that  the 
taxes  are  unpaid.  The  above  exception,  with  the  same  limitation, 
shall  also  apply  as  to  all  past  judgments  of  district  courts,  can- 
celing invalid  assessments." 


Assessment — Description  In,  145 

I  think  the  holding  of  the  Supreme  Court  in  the  case  of  Farmer 
V.  State,  94  Tex.  232,  would  preclude  a  recovery  upon  a  re-assess- 
ment of  property  in  the  hands  of  a  purchaser  who  acquired  the 
same  subsequent  to  the  year  for  which  the  assessment  was  made, 
eveij  in  the  absence  of  the  act  above  referred  to.  In  that  case  it 
is  said: 

"It  does  not  matter  that  the  purchaser  knew  that  the  taxes  had 
not  been  paid,  for  until  the  assessment  was  made,  the  land  was 
not  incumbered  by  the  State's  demand ;  and  when  the  title  passed 
to  Farmer,  Stephens  and  Lanham,  it  passed  free  of  any  claim  of 
the  State  for  taxes  which  had  not  theretofore  been  assessed." 
Opinion  of  B.  F.  Teague,  Tax  Attorney,  Comptroller's  Depart- 
ment. 


10 


CHAPTER  X. 


ASSESSOR  AND  HIS  DUTIES. 


Sec. 
162. 
163. 


164. 


165. 

166. 
167. 
168. 
169. 
170. 
171. 
172. 
173. 
174. 

175. 

176. 

177. 
178. 

179. 
180. 
181. 
182. 
183. 
184. 
185. 
186. 
187. 

188. 
189. 
190. 


Sec. 

Assessor — Election  of.  191. 

Duty  of  assessor  and  collector  192. 
of  cities  to  make  lists  of  193. 
property,  etc. 

Unrendered  property  in  cities       194. 
shall  be  ascertained,  etc.,  by 
city  assessor  and  collector.       195. 

Election   and  term  of  asses- 
sor. 196. 

Vacancies — How  filled.  197. 

Oath  and  bond. 

Purview  of  the  bond.  198. 

New   bond. 

Bond  for  county  taxes.  199. 

May  appoint  deputies. 

May  administer  oaths.  200. 

The  oath. 

Where  and  how  the  list  may  201. 
be  made.  202. 

Penalty  for  failure  to  attest  203. 
oath,  etc. 

Fraud   upon  the  public  rev- 
enue. 204. 

Taxpayer  to  make  oath.  205. 

When     assessments     to     be 
made.  206. 

Irregular   assessments   valid.      207. 

If  taxpayer  is  absent,  etc.  208. 

Or  refuses  to  list. 

Duty  of  assessor.  209. 

Abstracts  to  be  furnished.  210. 

Books  to  be  furnished. 

How  to  be  filled. 

Blocks  and  lots  in  cities. 

Duties  of  assessor  as  to  211. 
same. 

To  be  kept  in  office. 

Lands  not  on  abstract.  212. 

Certificate     from     board     of 
equalization. 


Substitute    to    be    employed. 

Unorganized   counties. 

Manner  and  form  of  assess- 
ing. 

Assessment  of  real  estate 
for  all  previous  years. 

Assessor  to  follow  instruc- 
tions. 

Duty  to  properly  assess. 

Assessor  to  furnish  list  of 
delinquents. 

Assessor  to  furnish  list  to 
board  of  equalization. 

Assessor  shall  make  out 
rolls   in  triplicate. 

Also  rolls  of  unrendered 
property. 

Assessor  to  add  up  columns. 

Return  and  oaths. 

All  lists  and  statements  to 
be  filed  with  the  county 
clerk. 

Rolls  to  be  distributed. 

Compensation  of  assessor  of 
State  and  county  taxes. 

How  paid  by  the  State. 

By  the  county. 

Penalties  for  neglect  of 
duty. 

Assessor  of  taxes. 

Fees  less  than  maximum' — 
Statements  of  fees  collect- 
ed— Excess  to  be  paid  into 
county  treasury. 

Deputies  and  assistants- 
Appointment  and  compen- 
sation. 

Penalty  for  failure  to 
charge  up  fees  for  remis- 
sion of  fees,  etc. 


Assessor  and  His  Duties.  147 

Sec.  Sec. 

213.  Payment   of    ex-officio    serv-      217.  Fiscal    year — At    what    time 

ices.  reports  must  be  made,  and 

214.  Officers    to     keep     a    correct  by  whom. 

statement — Accounts   to    be      218.  Commission    in     school    dis- 
examined  by  grand  jury.  ^  trict  tax. 

215.  Certain  officers  not  required       219.  Compensation  for  funded  in- 

to make  a  report  or  keep  a  debtedness, 

statement.  220.  Duty   of   assessor   as   to    un- 

216.  Statement    of    tax    collector  rendered  property. 

and  assessor, 

§  162.     Assessor — Election  of 

There  shall  be  elected  by  the  qualified  electors  of  each  county, 
at  the  same  time  and  under  the  same  law  regulating  the  election 
of  State  and  county  officers,  an  assessor  of  taxes,  who  shall  hold, 
his  office  for  two  years  and  until  his  successor  is  elected  and  qual- 
ified.   State  Const.,  Sec.  14,  Art.  8. 

§  163.     Duty  of  assessor  and  collector  of  cities  to  make  lists 
of  property,  etc. 

It  shall  be  the  duty  of  the  assessor  and  collector  to  make  out 
a  list  of  all  personal  property  which  has  not  been  given  in  for 
assessment  according  to  the  provisions  of  this  title,  and  assess 
the  same  in  the  name  of  the  owner,  if  he  be  known ;  if  not,  then 
it  shall  be  assessed  by  description  of  the  property,  and  as  un- 
known owner,  and  the  value  of  such  property  shall  be  determined 
by  the  board  of  equalization,  and  the  same  may  be  sold  as  in 
other  cases,  if  the  tax  be  not  paid  in  the  time  prescribed  by  law. 
Sayles  R.  S.,  Art.  502. 

§  164.     Unrendered  property  in  cities  shall  be  ascertained,  etc., 
by  city  assessor  and  collector. 

It  shall  be  the  duty  of  the  assessor  and  collector,  at  the  ex- 
piration of  the  time  fixed  by  ordinance  for  the  rendition  of  prop- 
erty, to  ascertain  such  property  in  the  city  subject  to  taxation 
as  has  not  been  rendered,  and  the  same  shall  be  by  him  presented 
to  the  board  of  equalization  for  valuation  by  said  board,  and  the 
same  shall  be  by  him  entered  in  a  supplement  to  the  assessment 
roll  as  unknown,  specifying  the  year  for  which  said  tax  is  not 
paid  within  the  time  prescribed  by  law;  said  property  shall  be 
sold  at  the  same  time  and  with  like  effects  as  other  property. 
Sayles  R.  S.,  Art.  503. 


148  Taxation  in  Texas. 

§  165.     Election  and  term  of  assessor. 

There  shall  be  elected  by  the  qualified  electors  of  each  county 
within  this  state,  at  the  same  time  and  under  the  same  law  regu- 
lating the  election  of  State  and  county  officers,  an  assessor  of 
taxes,  who  shall  hold  his  office  for  two  years,  and  until  his  suc- 
cessor is  elected  and  qualified.  (Const.,  Arts.  8,  14 ;  Acts  Aug.  21, 
1876,  p.  265,  1.)    Art.  5089,  R.  S. 

§  166.     Vacancies — How  filled. 

In  case  of  a  vacancy  in  the  office  of  assessor  of  taxes,  the  same 
shall  be  filled  by  the  County  Commissioners'  Court  for  the  unex- 
pired term  only  and  until  the  election  and  qualification  of  an  as- 
sessor at  the  succeeding  general  election ;  and  the  person  ap- 
pointed to  fill  such  vacancy  shall  qualify  in  the  same  manner  as 
is  prescribed  by  law  for  assessors  of  taxes  and  shall  have  all 
the  rights  and  shall  perform  all  the  duties  required  by  law  of  the 
assessor  elected.    R.  S.,  Art.  5090. 

§  167.     Oath  and  bond. 

Every  assessor  of  taxes  within  twenty  days  after  he  shall  have 
received  notice  of  his  election  or  appointment  and  before  enter- 
ing upon  the  duties  of  his  office,  shall  execute  a  bond,  payable 
to  the  Governor  and  his  successors  in  office  in  a  sum  which  shall 
be  equal  to  one-fourth  the  amount  of  the  State  tax  of  the  county, 
as  shown  by  the  last  preceding  assessment,  but  not  to  exceed  ten 
thousand  dollars,  with  at  least  three  good  and  sufficient  sureties, 
to  be  approved  by  the  Commissioners'  Court  of  his  county,  condi- 
tioned that  he  will  faithfully  discharge  all  the  duties  of  said 
office;  and  shall  take  and  subscribe  the  oath  prescribed  by  the 
Constitution,  which  oath,  together  with  said  bond,  shall  be  re- 
corded in  the  office  of  the  clerk  of  the  County  Court  of  said 
county,  and  be  forwarded  by  the  county  judge  of  the  county  to 
the  comptroller  to  be  deposited  in  his  office.  (lb.,  p.  266,  2.) 
R.  S.,  Art.  5091. 

§  168.     Purview  of  the  bond. 

Said  bond  shall  be  deemed  to  extend  to  the  faithful  perform- 
ance of  the  duties  of  his  office  as  assessor  of  taxes  for  and  dur- 
ing the  full  term  for  which  he  was  elected  or  appointed,  and  shall 
not  become  void  upon  his  first  recovery,  but  suit  may  be  main- 
tained thereon  until  the  whole  amount  thereof  be  recovered. 
(lb.)    R.  S.,  Art.  5092. 


Assessor  and  His  Duties.  149 

§  169.     New  bond. 

Assessors  of  taxes  may  be  required  to  furnish  a  new  bond  and 
an  additional  security  whenever,  in  the  opinion  of  the  Commis- 
sioners' Court,  it  may  be  advisable;  and  should  any  assessor  of 
taxes  fail  to  give  a  new  bond  and  additional  security  when  re- 
quired, he  shall  be  suspended  from  the  further  discharge  of  his 
duties  by  the  Commissioners'  Court  of  his  county  and  be  removed 
from  office  in  the  mode  prescribed  by  law  for  the  removal  of 
county  officers.     (lb.)     R.  S.,  Art.  5093.' 

§  170.     Bond  for  county  taxes. 

The  assessor  of  taxes  shall  give  a  like  bond  with  like  conditions 
to  the  county  judges  of  their  respective  counties  and  their  suc- 
cessors in  office  in  a  sum  not  less  than  one-fourth  of  the  amount 
of  the  county  tax  of  the  county  as  shown  by  the  last  preced- 
ing assessment,  but  not  to  exceed  five  thousand  dollars,  with  at 
least  three  good  and  sufficient  sureties,  to  be  approved  by  the 
Commissioners'  Court  of  his  county,  which  bond  shall  be  re- 
corded and  deposited  in  the  county  clerk's  office  of  the  county. 
A  new  bond  and  an  additional  security  may  be  required,  and  the 
assessor  of  taxes  may  be  removed  from  office  for  a  failure  to 
furnish  a  new  bond  or  additional  security  in  the  manner  pre- 
scribed by  law.     (lb.  3.)     R.  S.,  Art.  5094. 

§  171.     May  appoint  deputies. 

Each  assessor  of  taxes  may  appoint  one  or  more  deputies  to 
assist  him  in  the  assessment  of  taxes,  and  may  require  such  bond 
and  security  from  the  person  so  appointed  as  he  deems  neces- 
sary for  his  indemnity ;  and  the  assessor  of  taxes  shall  in  all  cases 
be  liable  and  accountable  for  the  proceedings  and  misconduct  of 
his  deputies.  (lb.,  p.  267,  7.)  R.  S.,  Art.  5095. 
Authority  of  deputies. 

The  deputies  appointed  in  accordance  with  the  provisions  of 
the  preceding  article  shall  do  and  perform  all  the  duties  imposed 
and  required  by  law  of  assessors  of  taxes  and  all  acts  of  such 
deputies  done  in  conformity  with  law  shall  be  as  binding  and  valid 
as  if  done  by  the  assessor  of  taxes  in  person.  (lb.,  8.)  R.  S., 
Art.  5096. 

The  acts  of  de  facto  deputy  assessors,  in  raising  the  valuation 
of  property  listed  for  taxes,  are  not  rendered  invalid  because 
they  may  have  been  legally  disqualified  from  acting  as  deputies 


150  Taxation  in  Texas. 

by  reason  of  their  holding  other  offices.     T.  &  P.  R.  R.  Co.  v. 
Harrison  County,  54  Tex.  1 19. 

"Under  Acts  25th  Gen.  Assem.,  p.  10,  Chap.  5,  Sec.  12,  provid- 
ing that  the  county  judge,  on  issuing  his  order  granting  author- 
ity to  appoint  deputy  assessors,  shall  state  in  such  order  the 
number  of  deputies  authorized,  and  the  amount  to  be  paid  each, 
a  proviso  in  such  an  order  that  the  office  shall  yield  revenue  suf- 
ficient to  pay  the  same,  is  mere  surplusage,  and  does  not  vitiate 
the  order.  McLennan  County  Co.  v.  Frost,  7S  S.  W.  876,  32 
Tex.  Civ.  App.  617. 

§  172.     May  administer  oaths. 

Assessors  of  taxes  are  hereby  authorized  and  empowered  to 
administer  all  oaths  necessary  to  obtain  a  full,  complete  and  cor- 
rect assessment  of  all  taxable  property  situated  in  their  respective 
counties.     (lb.,  266,  4.)     R.  S.,  Art.  5097. 

§  173.     The  oath. 

The  assessor  of  taxes  shall  also  require  each  person  rendering 
a  list  of  taxable  property  to  him  for  taxation  under  the  assess- 
ment laws  to  subscribe  to  the  following  oath  or  affirmation,  which 
shall  be  written  or  printed  at  the  bottom  of  each  inventory,  to- 

wit :   "I, (filling  the  blank  with  the  name  of  the  person 

subscribing),  do  solemnly  swear  (or  affirm)  that  the  above  in- 
ventory rendered  by  me  contains  a  full,  true  and  complete  list  of 
all  taxable  property  owned  or  held  by  me  in  my  own  name  (or 
for  others,  as  the  case  may  be,  naming  the  person  or  firm  for 
whom  he  rendered  the  list)  in  this  county,  subject  to  taxation  in 
this  county,  and  personal  property  not  in  this  county,  subject  to 
taxation  in  this  county  by  the  laws  of  this  State  on  the  first  day 

of  January,  A.  D.  18 (filling  the  blank  with  the  year),  and 

that  I  have  true  answers  made  to  all  questions  propounded  to  me 
touching  the  same,  so  help  me  God."  (lb.,  p.  267,  5;  1897,  p. 
203.)    R.  S.,  Art.  5098. 

§  174.     Where  and  how  the  list  may  be  made. 

The  owner  or  agent  who  is  required  under  the  laws  of  this 
State  to  render  any  property  for  taxation,  may  render  the  same 
in  the  county  where  the  same  in  (is)  situated  by  listing  the  same 
and  making  oath  thereto  as  required  in  this  title,  before  any  offi- 
cer authorized  to  administer  oaths  in  this  State,  or  any  officer  out 


Assessor  and  His  Duties.  151 

of  this  State  that  is  authorized  by  law  to  take  acknowledgments 
of  instruments  for  record  in  this  State  and  may  forward  the  same 
to  the  assessor  of  the  county  by  mail  or  otherwise,  and  the  as- 
sessor shall  enter  the  said  property  on  his  tax  rolls.  If  the  as- 
sessor is  satisfied  with  the  valuation  as  rendered  in  said  list  he 
shall  so  enter  the  same;  if  he  is  not  satisfied  with  the  valuation 
he  shall  refer  the  same  to  the  board  of  equalization  of  the  county 
for  their  action,  and  shall  immediately  notify,  by  mail  or  other- 
wise, the  person  from  whom  he  received  said  list  that  he  has 
referred  said  valuation  to  the  board  of  equalization.  (lb.)  R. 
S.,  Art.  5099. 

§  175.     Penalty  for  failure  to  attest  oath  etc. 

The  assessor  of  taxes,  for  every  failure  or  neglect  to  administer 
the  oath  or  affirmation  prescribed  in  Article  5098  to  each  person 
rendering  a  list  of  taxable  property  to  him,  unless  the  person  re- 
fuses to  qualify,  shall  forfeit  fifty  dollars,  to  be  deducted  out  of 
his  commissions,  upon  full  and  satisfactory  information  furnished 
the  county  judge;  and  for  each  and  every  failure  or  neglect  to 
attest  the  oath  subscribed  to  as  provided  in  said  article,  shall  for- 
feit the  sum  of  fifty  dollars  upon  satisfactory  information  fur- 
nished the  county  judge.  The  forfeitures  imposed  by  this  article 
shall  be  deducted  from  the  assessor's  commissions  on  the  assess- 
ment for  county  taxes.      (lb.,  6.)    R.  S.,  Art.  5100. 

§  176.     Fraud  upon  the  public  revenue. 

Any  evasion  by  means  of  artifice  or  temporary  or  fictitious 
sale,  exchange  or  pretended  transfer  upon  any  bank  books  or 
gold  and  silver  coin,  bank  notes  or  other  notes  or  bonds  subject 
to  taxation  under  the  laws  of  this  State  for  United  States  non- 
taxable treasury  notes  or  any  notes  or  bonds  not  so  subject  to 
•taxation,  and  any  such  pretended  sale,  exchange  or  transfer  not 
made  in  good  faith,  and  by  actual  exchange  and  delivery  of  the 
funds  so  sold,  exchanged  or  transferred  and  made  only  by  entry 
on  bank  books,  or  by  any  express  or  implied  understanding  not 
to  immediately  make  a  bona  fide  and  permanent  sale,  shall  be 
deemed  prima  facie  to  be  a  fraud  upon  the  public  revenue  of  this 
State.     (Acts  1891,  p.  39,  1.)    R.  S.,  Art.  5101. 

§  177.     Taxpayer  to  make  oath. 

All  assessors  of  taxes  in  this  State  shall  require  all  taxpayers 
when  assessed  by  them  to  make  oath  as  to  any  such  sale,  ex- 


152  Taxation  in  Texas. 

change  or  transfer  made  by  them  on  the  first  day  of  January  or 
within  sixty  days  before  said  first  day  of  January  of  any  year 
for  which  any  such  assessment  is  made,  as  to  the  good  faith  and 
bona  fide  business  transaction  of  any  such  sale,  exchange  or 
transfer,  as  above  set  forth,  if  any  such  should  have  been  made 
by  them,  and  if  it  should  be  disclosed  that  any  such  pretended 
sale,  exchange  or  transfer  has  been  made  for  the  purpose  of  evad- 
ing taxation,  then  and  in  that  event  the  assessor  shall  list  and 
render  against  such  person  the  coin,  banknotes  or  other  notes 
or  bonds  subject  to  taxation  under  the  laws  of  this  State;  pro- 
vided that  if  any  person  shall  make  a  false  affidavit  as  to  and  of 
the  foregoing  facts  he  shall  be  deemed  guilty  of  perjury  and 
be  punished  as  is  now  provided  by  law.  (lb.,  3.)  R.  S.,  Art. 
5102. 

§  178.     When  assessments  to  be  made. 

The  assessor  of  taxes  shall,  between  the  first  day  of  January 
and  the  first  day  of  June  of  each  year,  proceed  to  take  a  list  of 
taxable  property,  real  and  personal,  in  his  county,  and  assess 
the  value  thereof  in  the  manner  following,  to-wit:  By  calling 
upon  the  person,  or  by  calling  at  the  office,  place  of  business  or 
the  residence  of  the  person  and  listing  the  property  required  by 
law  in  his  name  and  requiring  the  person  to  make  a  statement 
under  oath,  as  prescribed  in  Article  5098,  of  such  property  in  the 
form  hereinafter  prescribed.  (Acts  1876,  p.  265,  9.)  R.  S., 
Art.  5103. 

(1)  When  a  pasture  lies  partly  in  two  counties  the  owner 
may  render  the  stock  in  the  county  of  his  residence.  Court  v. 
O'Connor,  65  Tex.  334. 

§  179.     Irregular  assessments  valid. 

Should  any  property  be  listed  or  assessed  for  taxation  after 
the  first  day  of  June  of  .any  year,  or  should  the  assessor  of  taxes 
or  his  deputy  fail  to  administer  the  requisite  oath  or  attest  the 
same  in  the  mode  prescribed  by  law,  or  should  the  party  rendering 
property  for  taxation  fail  to  subscribe  to  the  list,  yet  the  assess- 
ment shall,  nevertheless,  be  as  valid  and  binding  to  all  intents 
and  purposes  as  if  made  in  strict  pursuance  of  law.  (lb.)  R.  S., 
Art.  5104. 

The  tax  roll  is  the  warrant  by  which  the  collector  is  authorized 
to  demand  taxes,  and  to  seize  and  sell  property  in  default  of  their 


Assessor  and  His  Duties.  153 

payment,  it  should  exhibit  not  only  the  list  and  valuation  of  the 
property  of  each  individual  taxpayer  as  shown  by  the  assess- 
ment, but  it  should  show  in  its  appropriate  column  the  amount 
of  each  specific  tax  for  which  he  is  liable.  The  imperfect  col- 
lection into  the  tax  roll  of  the  facts  ascertained  by  the  assess- 
ment would  not  affect  the  liability  of  the  tax.  The  omission  to 
set  out  in  the  tax  roll  the  amount  of  each  tax  levied  would,  at 
most,  be  an  irregularity  affecting  the  power  of  the  collector  to 
seize  and  sell  property,  in  no  wise,  however,  affecting  the  liability 
of  the  taxpayer.  Hence  the  failure  to  exhibit  the  amount  of  a 
school  tax,  legally  levied,  upon  the  tax  roll  is  no  cause  for  in- 
junction restraining  its  collection.    George  v.  Dean,  47  Tex.  72). 

Mere  defects  in  the  form  and  manner  of  making  the  consoli- 
dated assessment  roll  do  not  afford  grounds  for  the  interposi- 
tion of  a  court. of  equity  to  enjoin  the  collection  of  taxes  legally 
levied,  where,  from  the  different  statutes  on  the  subject,  the 
meaning  of  such  tax  rolls  can  be  ascertained.  Lahadie  v.  Dean, 
47  Tex.  101. 

"The  failure  of  an  assessor  to  carry  the  description  of  the  land 
assessed  into  the  rolls  which  he  delivers  to  the  collector  precludes 
the  latter,  after  the  taxes  have  become  delinquent,  from  levying 
and  making  a  valid  sale  by  virtue  of  the  rolls,  but  does  not  re- 
lease the  land  from  the  tax  legally  assessed  against  it,  nor  ab- 
solve the  owner  from  its  payment."  City  of  San  Antonio  v.  Raley, 
32  S.  W.  181. 

§  180.     If  taxpayer  is  absent,  etc. 

If  any  person  who  is  required  by  this  title  to  list  property, 
shall  be  sick  or  absent  when  the  assessor  calls  for  a  list  of  his 
property,  the  assessor  shall  leave  at  the  office  or  place  of  resi- 
dence or  business  of  such  person,  a  written  or  printed  notice  re- 
quiring such  person  to  meet  him  and  render  a  list  of  his  property 
at  such  time  and  place  as  the  assessor  of  taxes  may  designate  in 
said  notice.  The  assessor  of  taxes  shall  carefully  note  in  a  book 
the  date  of  leaving  such  notice.     (lb.,  268,  10.)    R.  S.,  Art.  5105. 

§  181.     Or  refuses  to  list. 

In  every  case  where  any  person  whose  duty  it  is  to  list  any 
property  for  taxation  has  refused  or  neglected  to  list  the  same 
when  called  on  for  that  purpose  by  the  assessor  of  taxes,  or  has 
refused  to  subscribe  to  the  oath  in  regard  to  the  truth  of  his 


154  Taxation  in  Texas. 

statement  of  the  property  or  any  part  thereof,  when  required  by 
the  assessor  of  taxes,  the  assessor  shall  note  in  a  book  the  name 
of  such  person  who  refused  to  list  or  to  swear ;  and  in  every  case 
where  any  person  required  to  list  property  for  taxation  has  been 
absent  or  unable  from  sickness  to  list  the  same,  the  assessor  of 
taxes  shall  note  in  a  book  such  fact,  together  with  name  of  such 
person.    R.  S.,  Art.  5106. 

§  182.     Duty  of  assessor. 

In  all  cases  of  failure  to  obtain  a  statement  of  real  and  personal 
property  from  any  cause,  it  shall  be  the  duty  of  the  assessor  of 
taxes  to  ascertain  the  amount  and  value  of  such  property  and 
assess  the  same  as  he  believes  to  be  the  true  and  full  value  thereof 
and  such  assessment  shall  be  as  valid  and  as  binding  as  if  such 
property  had  been  rendered  by  the  proper  owner  thereof.  (lb., 
§  12.)    R.  S.,  Art.  5107. 

§  183.     Abstracts  to  be  furnished. 

The  commissioner  of  the  general  land  office  shall  furnish  to 
each  assessor  of  taxes  in  this  State  a  correct  abstract  of  all  the 
surveys  of  land  and  number  of  acres  therein  in  their  respective 
counties  and  on  the  first  day  of  January  of  each  year  said  com- 
missioner of  the  general  land  office  shall  furnish  said  assessors 
an  additional  list  of  all  new  valid  surveys  in  his  coiinty  during 
the  year;  provided,  that  in  case  the  records  of  the  land  office  do 
not  show  the  quantity  of  acres  in  a  survey,  the  surveyor  of  the 
district  shall  furnish  said  assessor  a  certified  statement  of  the 
number  of  acres  therein.     (Acts  1879,  p.  24.)     R.  S.,  Art.  5108. 

§  184.     Books  to  be  furnished. 

The  Commissioners'  Court  of  each  county  in  this  State  shall 
procure  and  furnish  the  assessor  of  said  county  three  well-bound 
books  of  not  less  than  six  hundred  and  forty  pages  each  and  an 
index  book  for  same  and  such  other  stationery  as  may  be  neces- 
sary; said  books  to  be  of  the  best  material  and  make,  and  shall 
have  printed  headings  as  per  following  form': 


Assessor  and  His  Duties. 


155 


Patent' 

Ccriil'ualii 

Vol, 

To  Wlioni  Issued 

Dat«   1 

Acres 

iJo.. 

Class' 

.Character 

To  Wliom  1 

»ucd 

Month 

Day. 

Y<:ar 

Rendered  tor  Taxation 

\ear 

By  Whom  Rendered 

Acres 

Vjlue 

Vwr 

By  Whom  Rendered 

Acres. 

Value 

S.  R.  S.,  Art.  5109. 

§  185.     How  to  be  filled. 

The  blanks  to  be  filled  by  the  assessor  with  the  abstract  num- 
ber, name  of  party  to  whom  the  certificate  was  issued,  the  num- 
ber, class,  and  character  of  the  certificate,  the  name  of  the  party 
to  whom  the  patent  issued,  number  of  volume  of  patent,  the 
month,  day  and  year  it  was  issued,  and  the  number  of  acres  each 
survey  contains ;  which  whole  survey  shall  stand  as  a  debit  against 
the  assessor.     (lb..  Sec.  2.)    R.  S.,  Art.  5110. 

§  186.     Blocks  and  lots  in  cities. 

Each  assessor  shall  be  required  to  make  an  abstract  of  all  the 
blocks  of  each  of  the  cities  or  towns  or  villages  of  his  county 
in  a  book  or  books  of  at  least  four  hundred  and  eighty  pages 
each,  to  be  furnished  him  by  the  Commissioners'  Court  of  his 
county  for  that  purpose,  with  an  index  book  to  the  same,  which 
said  book  or  books  shall  have  a  blank  space  for  a  diagram  or  plot 
of  each  block  or  subdivision,  giving  the  number  of  the  lots  as  per 
form  following: 


156 


Taxation  in  Texas. 


Year 

Owner's  Name 

No.  Lot 

Value 

^^^^^ 

\ 

\ 

\ 

\ 

^-\^ 

Year 

Owner  s  Name 

No.  Lot 

V'alue 

And  the  said  assessor  shall  draw  a  plot  of  each  block  in  the 
blank  space  left  for  that  purpose,  giving  the  number  of  each  lot. 
And  the  whole  of  said  block  or  subdivision  shall  be  a  debit  against 
the  assessor.    R.  S.,  5111.     (lb.,  §  3.) 

§  187.     Duties  of  assessors  as  to  same. 

Each  assessor  in  this  State,  when  he  shall  have  made  the  assess- 
ment of  his  county  for  each  year,  shall,  on  the  first  day  of  June 
of  each  year,  or  as  soon  thereafter  as  practicable,  carry  from  each 
person's  assessment  the  number  of  acres  and  its  value  on  each 
survey  of  lands,  lots  or  blocks  to  that  particular  survey,  lot  or 
block  found  on  the  abstract  books  provided  in  Articles  5110,  5111 
and  5119;  and  that  all  the  parts  of  each  survey  or  block  placed 
on  said  abstract  books  shall  be  a  credit  to  the  assessor  on  that 
particular  survey.  And  said  assessor  shall  deduct  the  total  num- 
ber of  acres  rendered  on  each  survey  or  block  from  the  total 
number  of  acres  of  the  whole  survey  or  block,  as  is  shown  by 
said  abstract,  and  if  any  part  is  left  unrendered  then  he  shall 
assess  the  same  to  the  owner  or  owners  thereof,  if  known,  and  if 
unknown,  then  to  "unknown  owners"  and  the  value  thereof  shall 
be  affixed  by  him,  sanctioned  by  the  board  of  equalization ;  pro- 
vided, that  the  OAvner  or  owners  of  any  survey  or  grant  of  land 
may  show  by  a  survey,  to  be  made  by  the  county  surveyor  of 


Assessor  and  His  Duties.  157 

the  county,  that  the  survey  and  grant  in  which  they  are  inter- 
ested does  not  contain  the  full  complement  of  acres,  showing 
how  many  acres  are  in  fact  embraced  within  the  calls  of  the  par- 
ticular survey  and  grant.     (lb.,  §4.)     R.  S.,  Art.  5112. 

The  act  reads:  "Sections  1,  2  and  3  of  this  act."  Section  1  of 
the  act  is  5108;  Section  2  is  Articles  5109  and  5110;  Section  3 
is  5111. 

§  188.     To  be  kept  in  office. 

The  assessor's  abstracts  shall  be  kept  in  his  office  at  the  county 
seat  of  his  county,  as  records  of  his  office,  and  shall  be  at  all 
times  subject  to  the  inspection  of  the  public.  The  index  book 
shall  show  the  original  grantee,  the  number  of  acres,  the  abstract 
number  and  the  volume  and  page  in  which  survey  is  placed. 
R.  S.,  Art.  5113. 

§  189.     Lands  not  on  abstract. 

Should  there  be  any  survey  of  lands,  lots  or  blocks  not  on  the 
abstract  book  or  books  which  are  by  law  subject  to  taxation,  the 
assessor  shall  enter  such  lands  or  lots  or  blocks  on  the  assess- 
ment list  as  though  the  same  appeared  on  said  abstract  books. 
R.  S.,  Art.  5114. 

§  190.     Certificate  from  books  of  equalization. 

Each  assessor  of  taxes  shall  procure  from  the  board  of  equal- 
ization of  his  county  a  certificate  that  all  the  surveys  and  parts 
of  surveys  of  lands  in  his  county,  and  all  the  lots  and  blocks  of 
the  cities  and  towns  of  his  county  are  rendered  for  taxation, 
which  certificate  shall  be  forwarded  to  the  comptroller  of  this 
State  before  he  shall  issue  to  said  assessor  a  draft  on  the  tax 
collector  of  his  county.  And  the  same  rule  shall  apply  to  the 
Commissioners'  Court  before  they  issue  drafts  on  the  county 
treasurer  for  his  pay  for  assessing  the  county  taxes.  R.  S.,  Art. 
5115. 

§  191.     Substitute  to  be  employed. 

The  board  of  equalization  of  the  County  Commissioners'  Court 
shall,  if  the  assessor  fails  to  perform  the  duties  required  by  this 
chapter  within  a  reasonable  time,  employ  some  other  competent 
person  to  have  the  requirements  of  this  law  carried  out,  and  the 
compensation  therefor  shall  be  deducted  from  the  assessor's  pav 
for  that  year.    R.  S.,  Art.  5116. 


158  Taxation  in  Texas. 

§  192.     Unorganized  counties. 

The  comptroller  of  this  State  shall  be  required  to  have  this  law 
carried  out  in  the  unorganized  counties  of  this  State,  where  lands 
are  located.    R.  S.,  Art.  5117. 

§  193.     Manner  and  form  of  assessing. 

The  manner  and  form  for  assessing  property  for  taxation  shall 
be  substantially  as  follows,  to-wit : 

(1)  The  name  of  the  owner. 

(2)  Abstract  number. 

(3)  From  whom  and  how  acquired. 

(4)  The  name  of  the  original  grantee. 

(5)  The  number  of  acres. 

(6)  The  value  of  the  land. 

(7)  The  number  of  the  lot  or  lots. 

(8)  The  number  of  the  block. 

(9)  The  value  of  town  lots. 

(10)  The  name  of  the  city  or  town. 

(11)  Number  of  miles  of  railroad  in  the  county. 

(12)  The  value  of  railroads  and  appurtenances,  including  the 
proportionate  amount  of  rolling  stock  to  the  county  after  the  as- 
sessment of  such  rolling  stock  and  its  apportionment  among  the 
several  counties  by  the  comptroller,  as  hereinafter  provided. 

(13)  Number  of  miles  of  telegraph  in  the  county. 

(14)  Value  of  telegraph  and  appurtenances  in  the  county. 

(15)  Number  of  amount  of  land  certificates  and  value  thereof. 

(16)  Number  of  horses  and  mules  and  value  thereof. 

(17)  Number  of  cattle  and  value  thereof. 

(18)  Number  of  jacks  and  jennets  and  value  thereof. 

( 19)  Number  of  sheep  and  value  thereof. 

(20)  Number  of  goats  and  value  thereof. 

(21)  Number  of  hogs  and  value  thereof. 

(22)  Number  of  carriages,  bicycles  or  tricycles,  buggies  or 
wagons  of  whatsoever  kind  and  value  thereof. 

(23)  Number  of  sewing  machines  and  knitting  machines  and 
the  value  thereof, 

(24)  Number  of  clocks  and  watches  and  value  thereof. 

(25)  Number  of  organs,  melodeons,  pianofortes  and  all  other 
musical  instruments  of  whatsoever  kind  and  value  thereof. 

(26)  The  value  of  household  and  kitchen  furniture  over  and 
above  the  amount  of  two  hundred  and  fifty  dollars. 


Assessor  and  His  Duties.  159 

(27)  Office  furniture  and  the  value  thereof. 

(28)  The  value  of  gold  and  silver  plate. 

(29)  The  value  of  diamonds  and  jewelry. 

(30)  '  Every  annuity  or  royalty,  the  description  and  value 
thereof. 

(31)  Number  of  steamboats,  sailing  vessels,  v^harves,  boats, 
barges  or  other  water-craft  and  the  value  thereof. 

(32)  The  value  of  goods  and  merchandise  of  every  descrip- 
tion which  such  person  is  required  to  list  as  a  merchant  in  band 
on  the  first  day  of  January  of  each  year. 

(33)  The  value  of  material  and  manufactured  articles  which 
such  person  is  required  to  list  as  a  manufacturer. 

(34)  The  value  of  manufactures,  tools,  implements  and  ma- 
chinery other  than  boilers  and  engines,  which  shall  be  listed  as 
such. 

(35)  Number  of  steam  engines  and  boilers  and  value  thereof. 

(36)  The  amount  of  moneys  of  bank,  banker,  broker,  stocker, 
jobber  or  any  other  person. 

(37)  The  amount  of  solvent  credits  of  bank,  banker,  broker, 
stocker,  jobber  or  any  other  person. 

(38)  The  amount  or  value  of  bonds  and  stocks  (other  than 
United  States  bonds). 

(39)  The  amount  and  value  of  shares  of  capital  stock  (of) 
companies  and  associations  not  incorporated  by  the  laws  of  this 
State. 

(40)  The  value  of  property  of  companies  and  corporations 
other  than  property  hereinbefore  enumerated. 

(41)  The  value  of  stock  and  furniture  of  saloons,  hotels  and 
eating  houses. 

(42)  The  value  of  every  billiard,  pigeon-hole,  bagatelle  and 
other  similar  table,  together  with,  the  number  thereof. 

(43)  Every  franchise,  the  description  and  value  thereof. 

(44)  The  value  of  all  other  property  not  enumerated  as 
above.    (Acts  1895,  p.  37.)    R.  S.,  Art.  5118. 

(1)  A  misdescription  of  the  property  of  a  taxpayer  by  the 
assessor  or  a  mere  irregularity  in  his  entry  of  it  upon  the  assess- 
ment list  or  roll,  furnishes  no  sufficient  ground  for  enjoining  the 
collection  of  a  tax  for  which  the  plaintiff  was  justly  liable,  and 
with  which  his  property  had  been  legally  assessed  by  the  proper 
officer  charged  with  this  duty.    George  v.  Dean,  47  Tex.  72). 


160  Taxation  in  Texas. 

If  the  assessor  of  taxes  discovers  any  real  property  in  his 
county  subject  to  taxation  which  has  not  been  listed  to  him,  he 
shall  list  and  assess  such  property  in  the  manner  following,  to- 
wit: 

(1)  The  name  of  the  owner;  if  unknown,  say  "unknown." 

(2)  Abstract  number  and  number  of  certificate. 

(3)  Number  of  the  survey. 

(4)  Name  of  the  original  grantee. 

(5)  Number  of  acres. 

(6)  The  true  and  full  value  thereof. 

(7)  The  number  of  lot  or  lots. 

(8)  The  number  of  the  block. 

(9)  The  true  and  full  value  thereof. 

(10)  The  name  of  the  city  or  town,  and  give  such  other  de- 
scription of  the  lot  or  lots  or  parcels  of  land  as  may  be  neces- 
sary to  better  describe  the  same ;  and  such  assessment  shall  be  as 
valid  as  if  rendered  by  the  owner  thereof.  (Acts  1876,  p.  269, 
Sec.  14.)    R.  S.,  Art.  5119. 

(1)  The  failure  of  an  assessor  in  listing  property  for  taxa- 
tion to  give  the  survey  number  of  the  grant  as  required  by  this 
article  renders  subsequent  proceedings  to  enforce  collection  of 
the  tax  illegal  unless  good  cause  can  be  shown  why  the  require- 
ment of  the  statute  in  this  regard  was  not  complied  with.  It 
would  be  a  sufficient  description  when  an  entire  survey  is  as- 
sessed, to  give  the  owner's  name,  if  known,  or  to  state  that  it  is 
unknown,  together  with  the  abstract  number,  certificate  number, 
survey  number  and  name  of  original  grantee  and  number  of 
acres,  but  when  only  a  portion  of  a  survey  is  assessed,  some 
further  description  is  necessary  in  order  to  identify  the  particular 
portion  assessed.    Morgan  v.  Smith,  70  Tex.  637;  8  S.  W.  528. 

(2)  The  lots  into  which  town  or  city  blocks  are  subdivided 
are  generally  regarded  as  separate  and  distinct  parcels  of  land, 
as  much  so  as  separate  and  distinct,  though  adjoining,  surveys  or 
grants  in  the  country,  and  each  lot  should  be  separately  assessed. 
State  V.  Baker,  49  Tex.  762). 

§  194.     Assessment  of  real  estate  for  all  previous  years. 

If  the  assessor  of  taxes  shall  discover  in  his  county  any  real 
property  which  has  not  been  assessed  or  rendered  for  taxation  for 
any  year  since  1870  he  shall  list  and  assess  the  same  for  each 


Assessor  and  His  Duties.  161 

and  every  year  for  which  it  has  not  been  assessed,  in  the  man- 
ner prescribed  in  the  preceding  article,  and  such  assessment  shall 
be  as  valid  and  binding  as  though  it  had  been  rendered  by  the 
owner  thereof ;  but  no  such  real  property  shall  be  assessed  by  the 
assessor  unless  he  has  ascertained  by  the  certificate  of  the  comp- 
troller of  public  accounts  the  fact  that  the  records  of  his  office 
do  not  show  that  the  property  has  been  rendered  or  assessed  for 
the  year  in  which  he  assesses  it.  (Acts  1888,  p.  4;  lb.,  1895; 
Sen.  Jour.,  p.  486.) 

§  195.     Assessor  to  follow  instructions. 

The  assessors  of  taxes  in  the  execution  of  their  duties  shall 
use  the  forms  and  follow  the  instructions  which  shall  from 
time  to  time  be  prescribed  by  the  comptroller  of  public  accounts 
and  furnished  to  them  by  the  county  judge  in  pursuance  of  law. 
(Acts  1876,  p.  265.)     R.  S.,  Art.  5122. 

§  196.     Duty  to  properly  assess. 

In  case  the  person  listing  property  makes  oath,  and  the  assess- 
ment officer  is  satisfied  that  it  is  correctly  valued,  he  shall  list 
the  same  accordingly ;  but  if  the  assessor  is  satisfied  that  the 
value  is  too  low  he  shall  list  the  same  at  such  value  as  he,  as  a 
sworn  officer,  deems  just,  and  if  the  person  listing  makes  oath 
that  the  assessment  is  excessive  the  value  shall  be  decided  by  the 
board  of  equalization,  whose  valuation  shall  be  final.  (lb.,  p. 
270,  Sec.  17.)    R.  S.,  Art.  5123. 

§  197.     Assessor  to  furnish  list  of  delinquents. 

The  assessor  of  taxes  shall  furnish  the  board  of  equalization  on 
the  first  Monday  of  June  in  each  year,  or  as  soon  thereafter  as 
practicable  a  certified  list  of  names  of  all  persons  who  either  re- 
fuse to  swear  or  to  qualify  or  to  sign  the  oath  or  affirmation  as 
prescribed  in  this  title ;  also  the  list  of  the  names  of  those  per- 
sons who  refused  to  render  a  list  of  taxable  property  as  required 
by  this  title ;  and  should  any  person  so  failing  or  refusing  to  take 
the  oath  prescribed  or  to  render  a  list  of  their  property  or  to 
subscribe  to  the  oath  as  required  by  the  provisions  of  this  title, 
fail  to  give  satisfactory  reasons  for  such  failure  or  refusal  to 
the  board  of  equalization  within  one  month  from  the  date  of 
the  filing  of  said  notice  by  the  assessor  as  required  by  this  article, 
the  board  of  equalization  shall  return  a  list  of  all  persons  who  have 

11 


162  Taxation  in  Texas. 

failed  to  give  satisfactory  reasons  for  such  failure  or  refusal  to 
render,  qualify  or  subscribe  to  the  oath  or  affirmation,  as  the  case 
may  be,  to  the  assessor  of  taxes,  who  shall  present  the  said  list 
to  the  grand  jury  of  his  county  next  empaneled  after  the  board  of 
equalization  has  furnished  him  with  the  list  above  required.  Art. 
5125,  R.  S. 

§  198.     Assessor  to  furnish  list  to  board  of  equalization. 

The  assessor  of  taxes  shall  submit  all  of  the  lists  of  property 
rendered  to  him  prior  to  the  first  Monday  in  June  to  the  board 
of  equalization  of  his  county  on  the  first  Monday  in  June  or  as 
soon  thereafter  as  practicable  for  their  inspection,  approval,  cor- 
rection or  equalization ;  and  after  the  board  of  equalization  shall 
have  returned  the  corrected  and  approved  lists  of  taxable  prop- 
erty, the  assessor  of  taxes  shall  proceed  to  assess  all  the  unren- 
dered  property  of  his  county  as  provided  for  in  this  title,  and 
shall  proceed  to  make  out  and  prepare  his  rolls  or  books  of  all  the 
real  and  personal  property  listed  to  him,  in  the  form  and  man- 
ner prescribed  by  the  comptroller  of  the  state.    R.  S.,  Art.  5126. 

§  199.     Assessor  shall  make  out  rolls  in  triplicate. 

As  soon  as  the  board  of  equalization  shall  have  examined,  cor- 
rected and  approved  the  assessor's  list,  the  assessor  of  taxes  shall 
prepare  and  make  out  a  roll  or  book  as  may  be  required  by  the 
comptroller  from  the  list  so  corrected  and  approved  and  three 
exact  copies  of  same,  the  original  to  be  furnished  to  the  col- 
lector of  taxes,  the  second  to  the  comptroller  of  public  accounts 
and  the  third  to  be  filed  in  the  county  clerk's  office  for  the 
inspection  of  the  public.  He  shall  also  prepare  a  roll  or  book,  and 
two  exact  copies  thereof,  to  be  distributed,  the  first  to  the  col- 
lector of  taxes,  the  second  to  the  comptroller,  and  the  third  to 
be  filed  in  the  county  clerk's  office,  of  all  the  real  and  personal 
property  which  has  not  been  listed  to  him.    R.  S.,  Art.  5127. 

§  200.     Also  rolls  of  unrendered  property. 

The  assessor  of  taxes  shall,  after  his  list  of  unrendered  real 
and  personal  property  shall  have  been  examined,  corrected  and 
approved  by  the  board  of  equalization  as  provided  by  law,  pre- 
pare and  make  out  his  rolls  of  all  unrendered  real  and  personal 
property  listed  by  him  in  the  manner  and  form  prescribed  by  the 
comptroller  of  the  state.    R.  S.,  Art.  5128. 


Assessor  and  Hi;,  Duties.  163 

§  2001.     Assessor  to  add  up  columiiw. 

The  assessor  of  taxes  shall  add  up  and  note  the  aggregate  of 
each  column  on  his  roll  or  book,  and  he  shall  also  make  in  each 
book  or  roll,  under  proper  headings,  a  tabular  statement  showing 
the  footings  of  the  several  columns  up6n  each  page,  and  he  shall 
add  up  and  set  down  under  the  respective  headings  the  total  of 
the  several  columns.    R.  S.,  Art.  5129. 

§  202.     Return  and  oaths. 

The  assessor  of  taxes  shall,  on  or  before  the  first  day  of  Au- 
gust of  each  year  for  which  the  assessment  is  made,  return  his 
rolls  or  assessment  books  of  the  taxable  property  rendered  by  him 
for  that  year  after  they  have  been  niade  in  accordance  with  the 
provisions  of  this  title  to  the  county  board  of  equalization,  verified 
by  this  affidavit,  substantially  on  (in)  the  following  form: 
The  State  of  Texas, 
County. 

I, ,  Assessor  of  . County,  do  sol- 
emnly swear  that  the  rolls  or  books  to  which  this  is  attached  con- 
tain a  correct  and  full  list  of  the  real  and  personal  property  sub- 
ject to  taxation  in (fill  the  blank-with  the  name 

of  the  county)  County,  so  far  as  I  have  been  able  to  ascertain  the 
same;  that  I  have  sworn  every  person  listing  property  to  me  in 
the  county,  or  caused  the  same  to  be  done  in  manner  a'nd  form 
as  provided  by  law,  and  that  the  assessed  value  set  down  in  the 
proper  column  opposite  the  several  kinds  and  descriptions  of 
property  is  the  true  and  correct  valuation  thereof  as  ascertained 
by  law,  and  the  footings  of  the  several  columns  in  said  books  and 
the  tabular  statement  returned  is  correct,  as  I  verily  believe. 
R.  S.,  Art.  5130. 

§  203.     All  lists  and  statements  to  be  filed  with  the  county 
clerk. 

The  assessor  of  taxes  shall  at  the  same  time  deliver  to  the  board 
of  equalization  all  the  lists  and  statements  of  all  property  which 
shall  have  been  made  out  or  received  by  him,  and  arranged  in 
alphabetical  order,  together  with  the  roll  withdrawn  to  aid  him  in 
the  passed  assessment.  The  lists  and  statements  shall  be  filed 
in  the  county  clerk's  office,  and  remain  there  for  the  inspection 
of  the  public.    R.  S.,  Art.  5131. 


164  Taxation  in  Texas. 

§  204.     Rolls  to  be  distributed. 

After  the  board  of  equalization  shall  have  examined  the  rolls 
or  assessment  books  and  made  all  corrections,  if  any  be  necessary, 
the  assessor  shall  send  one  copy  of  each  to  the  comptroller  of 
public  accounts,  one  copy  of  each  to  the  collector  of  his  county, 
and  he  shall  file  the  other  copies  in  the  county  clerk's  office  until 
the  next  assessment,  when  the  assessor  shall  have  the  right  to 
withdraw  them  and  use  as  provided  in  this  title.  R.  S.,  Art. 
5132. 

§  205.     Compensation  of  assessor  of  state  and  county  taxes. 

Each  assessor  of  taxes  shall  receive  the  following  compensa- 
tion for  his  services,  which  shall  be  estimated  upon  the  total  values 
of  the  property  assessed,  as  follows : 

For  assessing  the  state  and  county  tax,  on  all  sums  for  the 
first  two  million  dollars  or  less,  five  cents  for  each  one  hundred 
dollars  of  property  assessed; 

On. all  sums  in  excess  of  two  million  dollars  and  less  than  five 
million  dollars,  two  and  one-quarter  cents  on  each  one  hundred 
dollars ; 

On  all  sums  in  excess  of  five  million  dollars,  one  and  seven- 
tenths  cents  on  each  one  hundred  dollars ; 

One-half  of  the  above  fees  shall  be  paid  by  the  state  and  one- 
half  by  -the  county ; 

And  for  assessing  the  poll  tax,  five  cents  for  each  poll,  which 
shall  be  paid  by  the  state. 

The  commissioners'  court  may  allow  to  the  assessor  of  taxes 
such  sums  of  money,  to  be  paid  monthly  from  the  county  treas- 
ury, as  may  be  necessary  to  pay  for  clerical  work,  taking  assess- 
ment and  making  out  the  tax  rolls  of  the  county,  such  sums  so 
allowed  to  be  deducted  from  the  amount  allowed  to  the  assessor 
as  compensation  of  said  tax  rolls ;  provided,  the  amount  allowed 
to  the  assessor  by  the  commissioners'  court  shall  not  exceed  the 
compensation  that  may  be  due  by  the  county  to  him  for  assessing. 
R.  S.,  Art.  5133. 

§  206.     How  paid  by  the  state. 

The  comptroller,  on  receipt  of  the  rolls,  shall  give  the  assessor 
an  order  on  the  collector  of  his  county  for  the  amount  due  him  by 
the  state  for  assessing  the  state  taxes,  to  be  paid  out  of  the  first 
money  collected  for  that  year.    R.  S.,  Art.  5134. 


Assessor  and  His  Duties.  165 

§  207.     By  the  county. 

The  commissioners'  court  shall  issue  an  order  on  the  county 
treasurer  of  their  county,  to  the  assessor,  for  the  amount  due 
him  for  assessing  the  county  tax  of  their  county,  to  be  paid  out 
of  the  first  money  received  from  the  collector  on  the  rolls  of  that 
year.    R.  S.,  Art.  5135. 

§  208.     Penalties  for  neglect  of  duty. 

Should  any  assessor  of  taxes  fail  or  neglect  to  make  out  and 
return  his  rolls  or  books  to  the  commissioners'  court  in  the  time 
and  manner  provided  for  in  this  chapter,  it  shall  be  competent  for 
the  commissioners'  court  to  deduct  from  his  compensation  such 
amount  as  they  may  deem  proper  and  right  for  such  neglect  and 
failure ;  and  should  his  rolls  or  books,  when  presented  for  ap- 
proval to  the  commissioners'  court,  prove  to  be  imperfect  or  erro- 
neous, the  court  shall  have  the  same  corrected  or  perfected 
either  by  the  assessor  or  some  other  person  than  the  assessor  of 
taxes.  Such  person  so  employed  by  the  commissioners'  court 
shall  be  entitled  to  such  part  of  the  commissions  to  which  such 
assessor  is  entitled  to  as  the  court  may  allow ;  and  said  court 
shall  so  certify  to  the  comptroller,  who  shall  pay  such  person  in 
the  same  manner  as  the  assessor  of  taxes  is  paid,  and  the  amount 
so  deducted  by  the  comptroller  from  the  commissions  of  the  as- 
sessor of  taxes  whose  duty  it  was  to  have  performed  such  work. 
R.  S.,  Art.  5136. 

§  209.     Assessor  of  taxes — Maximum  fees  to  be  retained  by 
the  assessor. 

The  maximum  amount  of  fees  of  all  kinds  that  may  be  retained 
by  the  assessor  shall  be  an  amount  not  exceeding  $2,000.00  per 
annum,  and  in  addition  thereto  one-fourth  of  the  excess  of  the 
fees  collected  by  him.    R.  S.,  Art.  2495c  (Acts  1897,  S.  S.,  p.  42). 

§  210.  Fees  less  than  maximum — Statements  of  fees  col- 
lected— Excess  to  be  paid  into  county  treasury. 
The  amounts  allowed  to  each  officer  mentioned  in  Art.  2495c 
may  be  retained  out  of  the  fees  collected  by  him  under  existing 
laws ;  but  in  no  case  shall  the  state  or  the  county  be  responsible 
for  the  payment  of  any  sum  when  the  fees  collected  by  any 
officer  are  less  than  the  maximum  compensation  allowed  by  this 
chapter,  or  be  responsible  for  the  pay  of  any  deputy,  or  assistant. 


166  Taxation  in  Texas. 

Each  officer  mentioned  in  the  preceding  article,  and  also  the 
sheriff,  shall  at  the  close  of  each  fiscal  year  make  to  the  district 
court  of  the  county  in  which  he  resides  a  sworn  statement  show- 
ing the  amount  of  fees  collected  by  him  during  the  fiscal  year 
and  the  amount  of  feeis  charged  and  not  collected,  and  by  whom 
due  and  number  of  deputies  and  assistants  employed  by  him  dur- 
ing the  year  and  the  amounts  paid  and  to  be  paid;  and  all  fees 
collected  by  the  officers  named  in  Art.  2495c  during  the  fiscal 
year,  in  excess  of  the  maximum  amount  allowed  and  of  the  one- 
fourth  of  the  excess  of  the  maximum'  amount  allowed  for  their 
services,  and  for  the  services  of  their  deputies  or  assistants  herein- 
after provided  for,  shall  be  paid  to  the  county  treasurer  of  the 
county  where  the  excess  occurred;  provided,  that  any  officer  in 
Art.  2495c  does  not  collect  the  maximum  amount  for  his  fees 
for  any  fiscal  year  and  who  reports  delinquent  fees  for  that  year 
shall  be  entitled  to  retain,  when  collected,  such  part  of  such  delin- 
quent fees  as  is  sufficient  to  complete,  the  maximum  compensation 
for  the  year  in  which  delinquent  fees  were  charged,  and  also  to 
retain  the  one-fourth  of  the  excess  belonging  to  him,  and  the 
remainder  of  the  delinquent  fees  for  that  fiscal  year  shall  be  paid 
as  hereinbefore  provided  for  when  collected.    R.  S.,  Art.  2495d. 

§211.     Deputies  and  assistants — Appointment  and  compensa- 
tion. 

Whenever  any  officer  named  in  Art.  2495c  shall  require  the 
service  of  deputies  or  assistants  in  the  performance  of  his  duties, 
he  shall  apply  to  the  county  judge  of  his  county  for  authority 
to  appoint  same,  and  the  county  judge  shall  issue  an  order  author- 
izing the  appointment  of  such  a  number  of  deputies  or  assistants 
as  in  his  opinion  may  be  necessary  for  the  efficient  performance 
of  the  duties  of  said  officer.  The  officer  applying  for  appointment 
of  a  deputy  or  assistant,  or  deputies  or  assistants,  shall  make 
affidavit  that  they  are  necessary  for  the  efficiency  of  the  public 
service,  and  the  county  judge  may  require  in  addition  a  statement 
showing  the  need  of  such  deputies  or  assistants,  and  in  no  case 
shall  the  county  judge  attempt  to  influence  the  appointment  of 
any  person  as  deputy  or  assistant  in  any  office.  The  maximum 
amount  allowed  for  deputies  or  assistants  for  their  services  shall 
be  as  follows,  to-wit : 


I 

Assessor  and  His  Duties.  167 


First  assistant  or  chief  deputy,  a  sum  not  to  exceed  a  rate  of 
$1,200  per  annum;  others  not  to  exceed  a  rate  of  $900  per 
annum. 

The  county  judge,  in  issuing  his  order  granting  authority  to 
appoint  deputies  or  assistants,  shall  state  in  such  order  the  num- 
ber of  deputies  or  assistants  authorized  and  the  amount  to  be 
paid  to  each,  and  the  amount  of  compensation  allowed  shall  be 
paid  out  of  the  fees  of  the  office  to  which  said  deputies  or  assist- 
ants may  be  appointed,  and  shall  not  be  included  in  estimating 
the  maximumi  salaries  of  officers  named  in  Art.  2495c.  R.  S.,  Art. 
2496e. 

§  212.  Penalty  for  failure  to  charge  up  fees  for  remission  of 
fees,  etc. 
Any  officer  named  in  Art.  2495c,  and  also  the  sheriff,  who 
shall  fail  to  charge  up  the  fees  or  costs  that  may  be  due  under 
existing  laws  or  who  shall  remit  any  fee  that  may  be  due  under 
the  laws,  or  who  shall  fail  to  make  the  report  required  in  Art. 
2495d,  or  who  shall  pay  his  deputy  or  assistant  a  less  sum  than 
that  amount  specified  in  his  sworn  statement,  or  receive  back  any 
part  of  such  compensation  allowed  such  deputy  or  assistant  as  a 
rebate,  shall  be  deemed  guilty  of  a  misdemeanor  and  on  convic- 
tion thereof  shall  be  fined  in  any  sum  not  less  than  $25  nor  more 
than  $500.  Each  act  forbidden  in  this  article  shall  constitute  a 
separate  oiTense.    Art.  2495g,  R.  S. 

§  213.     Payment  of  ex  officio  services. 

It  is  not  intended  by  this  chapter  that  the  commissioners'  court 
shall  be  debarred  from  allowing  compensation  for  ex  officio  serv- 
ices to  county  officials  not  to  be  included  in  estimating  the  maxi- 
mum provided  for  in  this  chapter  when  in  their  judgment  such 
compensation  is  necessary;  provided,  such  compensation  for  ex 
officio  services  shall  not  exceed  the  amounts  now  allowed  under 
the  law  for  ex  officio  services ;  provided,  further,  the  fees  allowed 
by  law  to  district  and  county  clerks,  county  attorneys  and  tax 
collectors  in  suits  to  collect  taxes  shall  be  in  addition  to  the 
maximum  salaries  fixed  by  this  chapter.    Art.  2495h,  R.  S. 

§  214.     Officers  to  keep  a  correct  statement — Accounts  to  be 
examined  by  grand  jury. 

It  shall  be  the  duty  of  those  officials  named  in  Art.  2495c,  and 
also  the  sheriffs,  to  keep  a  correct  statement  of  the  sums  coming 


168  Taxation  in  Texas.  / 

into  their  hands  as  fees  and  commissions,  in  a  book  to  be  pro- 
vided by  them  for  that  purpose,  in  which  the  officer  at  the  time 
when  any  fees  or  moneys  shall  come  into  his  hands,  enter  the 
same,  and  it  shall  be  the  duty  of  the  grand  jury  (and  the  district 
judge  shall  so  charge  the  grand  jury)  to  examine  these  accounts 
at  the  session  of  the  district  court  next  succeeding  the  first  day  of 
December  of  each  year,  and  make  a  report  on  same  to  the  district 
court  at  the  conclusion  of  the  session  of  the  grand  jury.  R,  S., 
Art.  24951. 

§215.  Certain  officers  not  required  to  make  a  report  or  keep 
a  statement. 
The  officers  named  in  Art.  2495c  in  those  counties  having  a 
population  of  fifteen  thousand,  or  less,  shall  not  be  required  to 
make  a  report  of  fees  as  provided  in  Art.  2495c,  or  to  keep  a 
statement  provided  for  in  Art.  2495d  or  to  keep  a  statement  pro- 
vided for  in  Art.  24951 ;  the  population  of  the  county  to  be  de- 
termined by  the  vote  cast  at  the  next  preceding  presidential  elec- 
tion, on  the  basis  of  five  inhabitants  of  each  vote  cast  at  such  elec- 
tion; provided,  that  all  district  attorneys  shall  be  required  to 
make  the  reports  and  keep  the  statements  required  in  this  chap- 
ter.   R.  S.,  Art.  2495 j. 

§  216.     Statement  of  tax  collector  and  assessor. 

The  tax  collector  and  assessor  at  the  time  of  their  settlement 
of  accounts  with  the  comptroller,  shall  file  with  him  a  copy  of  the 
sworn  statement  required  under  Art.  2495d.    Art.  2495k,  R.  S. 

§  217.  Fiscal  year — At  what  time  reports  must  be  made,  and 
by  whom. 
A  fiscal  year  within  the  meaning  of  this  chapter  shall  begin  on 
December  1,  of  each  year,  and  each  officer  named  in  Art.  2495c, 
and  also  the  sheriff,  shall  file  the  reports  and  make  the  settlement 
required  in  this  chapter  on  December  1  of  each  year.  Whenever 
such  officer  serves  for  a  fractional  part  of  a  fiscal  year,  he  shall 
nevertheless  file  his  report  and  make  a  settlement  for  such  part 
of  a  year  as  he  serves  and  shall  be  entitled  to  such  proportional 
part  of  the  maximum  allowed  as  the  time  of  his  services  bears 
to  the  entire  year.  However,  an  incoming  officer  elected  at  the 
general  election,  who  qualifies  prior  to  December  1,  next  follow- 
ing, shall  not  be  required  to  file  any  report  or  make  any  settle- 


Assessor  and  His  Duties.  169 

ment  before  December  1  of  the  following  year,  but  his  report  and 
settlement  shall  embrace  the  entire  period  dated  from  his  quali- 
fication. This  act  shall  take  effect  and  be  in  force  from  and  after 
December  1,  1897.    R.  S.,  Art.  24951. 

§  218.     Commission  in  school  district  tax. 

"Rev.  Art.  5133  provides  that  the  compensation  to  be  paid  as- 
sessors for  the  assessment  of  state  and  county  taxes  shall  be  1 
cent  on  each  $100  valuation.  Art.  3945  authorizes  the  levy  of 
school  district  taxes,  and  declares  that  the  assessor  shall  receive 
a  commission  of  1  per  cent  for  assessing  the  same.  Held,  that 
for  assessing  such  school-district  taxes  an  assessor  was  entitled 
to  1  per  cent  on  the  total  assessment,  and  not  1  cent  on  each 
$100  valuation  of  the  assessment."  McDonald  v.  Farmer,  56  S. 
W.  555,  23  Tex.  Civ.  App.  39. 

§  219.     Compensation  for  funded  indebtedness. 

"The  general  tax  law  allows,  as  compensation  to  the  assessor 
of  state  and  county  taxes,  a  percentage  on  the  valuation  of  prop- 
erty assessed,  'two-thirds'  of  which  to  be  paid  by  the  state  and 
one-third  by  the  county.  Gen.  Laws  1889,  p.  89,  authorizing  coun- 
ties to  fund  their  indebtedness,  provides  that  'all  taxes  levied 
under  this  act  shall  be  assessed  and  collected  in  the  same  man- 
ner, and  by  the  same  officers  whose  duty  it  is  to  assess  and  col- 
lect the  state  tax,  and  they  shall  receive  for  their  services  one- 
fourth  the  rate  of  commissions  allowed  for  assessing  and  col- 
lecting the  state  tax.'  Held,  that  the  assessor  levying  a  tax  to 
meet  the  funded  indebtedness  of  a  county  is  entitled  to  receive, 
as  compensation,  one-fourth  of  the  rate  paid  by  the  state  for  like 
services  under  the  general  tax  law."  Commissioners'  Court  v. 
F^rHnj,' 24  S.  W.  794;  86  Tex.  348. 

§  220.     Duty  of  assessor  as  to  unrendered  property. 

"It  is  only  where  property  has  not  been  rendered  for  taxation 
that  it  can  be  assesed  and  placed  on  the  unrendered  roll,  and  this 
must  be  done  by  the  assessor  (Rev.  St.,  Art.  4711),  and  the  board 
of  equalization  has  no  authority  to  direct  property,  which  has 
been  rendered  for  taxes  by  the  owner,  to  be  listed  by  the  assessor 
as  unrendered  property  under  another  name."  Cook  v.  G.,  H.  & 
S.  A.  Ry.  Co.,  24  S.  W.  544;  5  Tex.  Civ.  App.  644. 


CHAPTER  XL 


BOARD  OF  APPRAISERS. 


Sec. 

221.  Boards       of      equalization — 

Their  qualifications  and  du- 
ties. 

222.  Equalization   of   assessments. 

223.  Boards  may  equalize  without 

complaint. 

224.  Assessor    to    submit    list    to 

board  of  equalization. 

225.  Appointment    and    duties    of 

board  of  equalization  in  cit- 
ies or  towns. 

226.  Annual     meetings     of     said 

board. 

227.  Shall  value  property. 

228.  Values    to    be     equalized    by 

board. 

229.  Unrendered   property   list   to 

be  examined  by  board. 

230.  Notice  to  property  owners. 

231.  Board  to  lower  values — When. 

232.  Approval  of  lists  and  rolls  by 

board. 

233.  Action  of  board  final. 

234.  Compensation  of  board. 

235.  Oath  to  be  taken. 

236.  Approval  of  board — Sufficient. 

237.  Excessive     assessmen  t — 

Fraud — Remedy. 

238.  Determining  powers  of  board 

and  assessor. 

239.  Deputy    assessor    sitting    as 


§221. 


Sec. 

member  of  board. 

240.  Fraud — Reduction' — Failure  to 

appear — Notice. 

241.  Appellate    jurisdiction     from 

city  board  valid. 

242.  De  facto  officers. 

243.  No  power  to  add  property  to 

list. 

244.  Excessive     assessment     from 

fraudulent  motives. 

245.  County     commissioners     not 

liable  in  civil  action. 

246.  "Valuation  must  first  be  made 

by  assessor. 

247.  Owner   must   have   notice  of 

increase  of  valuation. 

248.  List    must    be    presented    to 

board. 

249.  Action  of  board  final. 

250.  Acts  of  two  members  valid. 

251.  Meeting  of  board  after  time. 

252.  Not  required  to  classify  prop- 

erty on  minutes. 

253.  Valuation. 

254.  No  criterion  of  value  in  con- 

demnation. 

255.  Constitution,    Article   8,    Sec- 

tion 18,  applies  to  State  and 
county  taxes. 

256.  Board   of  appeals   not  neces- 

sary— Where. 


Boards  of  Equilazation — Their  qualifications  and  du- 
ties. 

The  commissioners'  courts  of  the  several  counties  of  this  state 
shall  convene  and  sit  as  a  board  of  equalization  on  the  second 
Monday  in  June  of  each  year  or  as  soon  thereafter  as  practicable 
before  the  first  day  of  July,  to  receive  all  the  assessment  lists 
or  books  of  the  assessors  of  their  counties  for  inspection,  correc- 
tion, equalization  and  approval. 


Board  of  Appraisers.  171 

1.  They  shall  cause  the  assessor  to  bring  before  them  at  such 
meeting  all  the  assessment  lists,  books,  etc.,  for  inspection  and 
see  that  every  person  has  rendered  his  property  at  a  fair  market 
value,  and  shall  have  power  to  send  for  persons,  books  and  pa- 
pers, swear  and  qualify  persons,  to  ascertain  the  value  of  such 
property,  and  to  lower  or  raise  the  value  on  the  same. 

2.  They  shall  have  power  to  correct  errors  in  assessments. 

3.  They  shall  equalize  improved  lands  into  three  classes — the 
first  class  to  embrace  the  better  quality  of  land  and  improvements ; 
the  second  class  to  embrace  the  second  quality  of  lands  and  im- 
provements, and  the  third  class  to  embrace  lands  of  but  small  or 
inferior  improvements.  The  unimproved  lands  shall  embrace 
first,  second  and  third  class,  and  all  other  property  made  as 
nearly  uniform  as  possible. 

4.  After  they  have  inspected  and  equalized  as  near  as  possi- 
ble, they  shall  approve  said  lists  or  books  and  return  to  assessors 
for  making  up  the  general  rolls,  when  said  board  shall  meet 
again  and  approve  the  same,  if  found  correct. 

5.  Whenever  said  board  shall  find  it  their  duty  to  raise  the 
assessment  of  any  person's  property,  it  shall  be  their  duty  to 
order  the  county  clerk  to  give  the  person  written  notice,  who  ren- 
dered the  same,  that  they  desire  to  raise  the  value  of  the  same.  It 
shall  be  their  duty  to  cause  the  county  clerk  to  give  ten  days' 
written  notice  before  their  meeting  by  publication  in  some  news- 
paper, but  if  none  is  published  in  the  county,  then  by  posting  a 
written  or  printed  notice  in  each  justice's  precinct,  one  of  which 
must  be  at  the  court  house  door. 

6.  The  assessors  of  taxes  shall  furnish  to  the  board  of  equali- 
zation on  the  first  Monday  of  June  of  each  year,  or  as  soon  there- 
after as  practicable,  a  certified  list  of  names  of  all  persons  who 
either  refuse  to  swear  or  qualify,  or  to  have  signed  the  oath  or 
affirmation  as  required  by  law,  together  with  the  assessment  of 
said  persons'  property  made  by  him  through  other  information ; 
and  the  board  of  equalization  shall  examine,  equalize  and  correct 
assessments  so  made  by  the  assessor,  and  when  so  revised,  equal- 
ized and  corrected,  the  same  shall  be  approved.  Acts  1879,  p.  44 ; 
Amend.  1895;  Sen.  Jour.  No.  108,  p.  486;  Sayles'  R.  S.,  Art. 
5120. 

The  Legislature  shall  provide  for  equalizing,  as  near  as  may 
be,  the  valuation  of  all  property  subject  to  or  rendered  for  taxa- 


172  Taxation  in  Texas. 

tion  (the  county  commissioners'  court  to  constitute  a  board  of 
equalization),  with  reference  to  their  value  in  the  several  coun- 
ties.   St.  Const.,  Art.  8,  Sec.  18. 

This  section,  making  county  commissioners'  court  a  board  of 
equalization,  applies  to  state  and  county  taxes  and  not  to  city 
taxes.    Scolhard  v.  City  of  Dallas,  42  S.  W.  640. 

Houston  City  Charter,  as  amended  by  special  laws  1897,  p.  186, 
Ch.  17,  provides  for  the  appointment  of  a  board  of  appraisement 
composed  of  two  aldermen  and  one  citizen,  to  be  annually  nom- 
inated by  the  mayor  and  confirmed  by  the  city  council,  to  equalize 
taxes,  etc.,  and  the  ordinances  of  the  city  require  that  the  board 
shall  be  similarly  composed,  and  that  their  compensation  shall  be 
$5.00  for  each  day's  service,  and  requires  such  board  to  take  an 
oath  different  from  that  required  of  the  aldermen.  Held,  that 
such  charter  provision  and  ordinances  merely  conferred  a  new 
power  on  the  aldermen,  and  did  not  create  a  new  office  within 
Constitution,  Art.  16,  Sec.  40,  declaring  that  no  person  shall  hold 
or  exercise  at  the  same  time  more  than  one  civil  office  of  emolu- 
ment.   City  of  Houston  v.  Stewart,  87  S.  W.  665  ;  99  Tex.  67. 

§  222.     Equalization  of  assessments. 

In  case  the  person  listing  the  property  makes  the  oath,  and 
the  assessing  officer  is  satisfied  that  it  is  correctly  valued,  he 
shall  list  the  same  accordingly;  but  if  the  assessor  is  satisfied 
that  the  value  is  too  low  he  shall  list  the  same  at  such  value  as  he, 
as  a  sworn  officer,  deems  just;  and  if  the  person  listing  makes 
oath  that  the  assessment  is  excessive,  the  value  shall  be  decided 
by  the  board  of  equalization,  whose  valuation  shall  be  final.  R.  S., 
Art.  5123. 

§  223.     Boards  may  equalize  without  complaint. 

The  boards  of  equalization  shall  have  power,  without  complaint 
from  any  one,  to  supervise  the  assessments  of  their  respective 
counties,  and  if  satisfied  that  the  valuation  of  any  property  is 
not  just  and  fair,  to  increase  or  diminish  the  same,  and  to  affix 
a  proper  valuation  thereto,  and  their  action  in  such  cases  shall  be 
final,  and  not  subject  to  revision  by  said  board  or  any  other  tribu- 
nal thereafter.    R.  S.,  Art.  5124. 

§  224.     Assessor  to  submit  list  to  board  of  equalization. 

The  assessor  of  taxes  shall  submit  all  the  lists  of  property  ren- 
dered to  him  prior  to  the  first  Monday  in  June  to  the  board  of 


Board  of  Appraisers.  173 

equalizatioit  of  his  county  on  the  first  Monday  in  June,  or  as 
soon  thereafter  as  practicable,  for  their  inspection,  approval,  cor- 
rection or  equalization ;  and  after  the  board  of  equalization  shall 
have  returned  the  corrected  and  approved  lists  of  taxable  prop- 
erty, the  assessor  of  taxes  shall  proceed  to  assess  all  the  unren- 
dered  property  of  his  county  as  provided  for  in  this  title,  and 
shall  proceed  to  make  out  and  prepare  his  rolls  or  books  of  all 
the  real  and  personal  property,  listed  to  him  in  the  form  and 
manner  prescribed  by  the  comptroller  of  the  state.  R.  S.,  Art. 
5126. 

(1)  The  remedy  against  the  illegal  act  of  an  assessor  in  rais- 
ing an  assessment  without  authority  is  by  application  to  the 
board  of  equalization.    Duck  v.  Peeler,  7 A  Tex,  268;  11  S.  W. 

nil. 

(2)  The  board  has  no  power  to  strike  from  the  assessment 
roll  property  placed  thereon  by  the  assessor.  Galveston  County 
V.  Galveston  Gas  Co.,  72  Tex.  509;  10  S.  W.  583;  Galveston  Co. 
V.  Wharf  Co.,  72  Tex.  557;  10  S.  W.  587. 

(3)  The  board  has  power  to  revise  and  increase  the  valua- 
tion of  any  property  upon  the  assessment  rolls.  Duck  v.  Peeler, 
74  Tex.  268;  11  S.  W.  1111. 

An  assessment  roll  does  not  fix  any  liability  on  the  taxpayer  or 
his  property  until  the  list  has  been  approved  by  the  board  of 
equalization.    Chisholm  v.  Adams,  71  Tex.  678;  10  S.  W.  336. 

§  225.     Appointment  and  duties  of  board  of  equalization  in 
cities  and  towns. 

The  city  councils  of  the  several  cities  and  towns  of  this  state 
incorporated  under  the  general  laws  shall  annually,  at  their  first 
meeting  or  as  soon  thereafter  as  practicable,  appoint  three  com- 
missioners, each  being  a  qualified  voter,  a  resident  and  property 
owner  of  the  city  or  town  for  which  he  is  appointed,  who  shall 
be  styled  the  board  of  equalization,  and  at  the  same  meeting 
said  council  shall  by  ordinance  fix  the  time  for  the  meeting  of 
such  board  of  equalization.     Sayles  R.  S.,  Art.  505. 

§  226.     Annual  meetings  of  said  board. 

The  board  of  equalization  shall  convene  annually,  at  the  time 
fixed  by  the  city  council,  to  receive  all  the  assessment  lists  or 
books  of  the  assessor  of  their  city  for  examination,  correction. 


174  Taxation  in  Texas. 

equalization,  appraisement  and  approval,  and  at  all  meetings  of 
said  board  the  city  secretary  shall  act  as  secretary  thereof.  Sayles' 
R.  S.,  Art.  506. 

§  227.     Shall  value  property. 

The  board  of  equalization  shall  cause  the  assessor  to  bring  be- 
fore them,  at  the  time  fixed  for  the  convening  of  said  board,  all 
the  assessment  lists  or  books  of  the  assessor  of  their  city,  for 
their  examination,  that  they  may  see  if  each  and  every  person 
has  rendered  his  property  at  a  fair  and  market  value,  and  said 
board  shall  have  power  to  send  for  persons  and  papers  to  swear 
and  qualify  persons  who  testify,  to  ascertain  the  value  of  such 
property ;  and  if  they  are  satisfied  it  is  too  high,  they  shall  lower  it 
to  its  proper  value;  and  if  too  low  they  shall  raise  the  value  of 
such  property  to  a  proper  figure.  Said  board  shall  also  have 
power  to  correct  any  errors  that  may  appear  on  the  assessor's 
lists  or  books.    Sayles'  R.  S.,  Art.  507. 

§  228.     Values  to  be  equalized  by  board. 

The  board  of  equalization  shall  equalize  as  near  as  possible  the 
value  of  all  the  improved  lots  within  the  corporate  limits  of 
their  city,  having  reference  to  the  size  and  location  of.  said  lots 
and  the  improvements  thereon,  and  shall  equalize  the  value  of 
unimproved  lots  as  nearly  as  possible,  having  reference  to  the 
size  and  location  thereof,  and  all  other  property  of  the  same 
kind  shall  be  made  as  nearly  equal  as  possible.  Any  person  may 
file  with  said  board  at  any  time  before  the  final  action  of  said 
board  a  complaint  as  to  the  assessment  of  his  or  any  other  per- 
son's property,  and  said  board  shall  hear  said  complaint,  and 
said  complainant  shall  have  the  right  to  have  witnesses  sum- 
moned in  sustaining  said  complaint  as  to  the  insurance  on  said 
property,  or  the  rents  and  profits  it  may  bring  the  holder  thereof. 
Sayles'  R.  S.,  Art.  508. 

§  229.     Unrendered  property  list  to  be  examined  by  board. 

The  city  assessor,  at  the  same  time  that  he  delivers  to  said 
board  his  lists  and  books,  as  provided  in  article  507,  shall  also 
furnish  to  said  board  a  certified  list  of  the  names  of  all  persons 
who  either  refuse  to  swear  or  qualify  or  to  sign  the  oath  or  affir- 
mation as  required  by  law,  together  with  a  list  of  the  property 
of  such  persons   situated  within  the   corporate  limits   of  their 


Board  of  Appraisers.  175 

city,  as  made  by  him  through  other  information,  and  said  board 
shall  examine  said  lists  and  appraise  the  property  so  listed  by 
the  assessor,     Sayles'  R.  S.,  Art.  509. 

§  230.     Notice  to  property  owners. 

In  all  cases  where  the  board  of  equalization  shall  find  it  their 
duty  to  raise  the  value  of  any  property  appearing  on  the  list  or 
books  of  the  assessor,  they  shall,  after  having  fully  examined  such 
lists  or  books  and  corrected  all  errors  appearing  therein,  adjourn 
to  a  day  not  less  than  ten  nor  more  than  fifteen  days  from  the 
date  of  adjournment,  such  day  to  be  fixed  in  the  order  of  adjourn- 
ment, and  shall  cause  the  secretary  of  said  board  to  give  written 
notice  to  the  owner  of  such  property  or  to  the  person  rendering 
the  same,  of  the  time  to  which  said  board  may  have  adjourned, 
and  that  such  owner  or  person  rendering  the  said  property  may 
at  that  time  appear  and  show  cause  why  the  value  of  said  prop- 
erty should  not  be  raised,  which  notice  may  be  served  by  deposit- 
ing the  same,  properly  addressed  and  postage  paid,  in  the  city 
postoffice.  Sayles'  R.  S.,  Art.  510;  City  of  San  Antonio  v.  Hoef- 
ling,  39  S.  W.  918;  90  Tex.  511;  San  Antonio  v.  Hoefling,  90 
Tex.  513. 

§  231.     Board  to  lower  values,  when. 

The  board  of  equalization  shall  meet  at  the  time  specified  in 
said  order  of  adjournment,  and  shall  hear  all  persons,  the  value 
of  whose  property  has  been  raised,  and  if  said  board  is  satisfied 
they  have  raised  the  value  of  such  property  too  high,  they  shall 
lower  the  same  to  its  proper  value.    Sayles'  R.  S.,  Art.  511. 

§  232.     Approval  of  lists  and  rolls  by  board. 

The  board  of  equalization,  after  they  have  finally  examined  and 
equalized  the  value  of  all  property  on  the  assessor's  lists  or  books, 
shall  approve  said  lists  or  books,  and  return  them,  together  with 
the  lists  mentioned  in  Art.  509,  that  he  may  make  up  therefrom 
his  general  rolls  as  required  by  law ;  and  when  said  general  rolls 
are  so  made  up  the  board  shall  meet  again  to  examine  said  rolls 
and  approve  the  same  if  found  correct.     Sayles'  R.  S.,  Art.  512. 

§  233.     Action  of  board  final. 

The  action  of  said  board  at  the  meeting  provided  for  in  Art. 
511  above,  shall  be  final,  and  shall  not  be  subject  to  revision  by 
said  board  or  by  any  other  tribunal  thereafter.  Sayles'  R.  S., 
Art.  513. 


176  Taxation  in  Texas. 

§  234.     Compensation  of  board. 

The  members  of  the  board  of  equalization  and  the  city  secre- 
tary while  acting  as  secretary  of  said  board,  shall  receive  such 
compensation  for  their  services,  to  be  allowed  by  the  city  council, 
as  said  council  may  deem  just  and  reasonable.  Sayles'  R.  S., 
Art.  514. 

§  235.     Oath  to  be  taken. 

Before  said  board  shall  enter  upon  their  duties  they  shall  be 
sworn,  by  any  officer  authorized  by  law  to  administer  oaths,  to 
faithfully  and  impartially  discharge  all  duties  incumbent  upon 
them  by  law  as  such  board.    Sayles'  R.  S.,  Art.  515. 

§  236.     Approval  of  board  sufficient. 

Where  the  board  of  appraisers  approved  the  valuation  of  the 
assessor,  a  taxpayer  cannot  complain  that  it  was  the  board's 
duty  to  place  the  valuation,  and  not  the  assessor's.  Moody  v.  City 
of  Galveston,  50  S.  W.  482;  21  Tex.  Civ.  App.  16. 

§  236a.     Appointment  of  members. 

Where  the  appointment  of  the  members  of  a  board  of  equaliza- 
tion is  announced  by  the  mayor  in  the  presence  of  the  city  council, 
no  one  objecting,  it  is  held  on  collateral  attack  that  this  is  an  ap- 
pointment by  the  aldermen.  McCombs  v.  City  of  Rockport,  14 
Tex.  C.  A.  562. 

§  237.     Excessive  assessment — Fraud — Remedy. 

Our  constitution  provides  that  "taxation  shall  be  equal  and  uni- 
form." All  property  in  this  state,  whether  owned  by  natural  per- 
sons or  corporations,  other  than  municipal,  shall  be  taxed  in  pro- 
portion to  its  value,  which  shall  be  ascertained  as  may  be  pro- 
vided by  law.    Art.  8,  Sec.  1. 

We  are  of  the  opinion,  that  where  the  board  of  equalization 
in  raising  or  fixing  the  value  of  property,  acts  from  corrupt  or 
fraudulent  motives,  and  in  violation  of  the  laws  of  the  state, 
whether  constitutional  or  statutory,  their  acts  are  voidable  at  the 
suit  of  the  party  aggrieved,  and  that  the  courts  of  the  state  having 
jurisdiction  over  the  amount  involved  and  the  subject  matter  may, 
in  a  proper  case,  declare  such  acts  to  be  void  and  enjoin  the  en- 
forcement thereof  or  compliance  therewith,  and  that  Articles  5123 
and  5124  of  our  Revised  Statutes  were  not  intended  to  debar  or 
preclude  any  person  from  applying  to  the  courts  for  relief  in  such 


Board  of  Appraisers.  177 

cases — not,  indeed,  to  revise  the  action  of  such  board  in  fixing 
values,  but  to  set  it  aside  for  fraud.  The  Legislature,  in  de- 
claring their  official  acts,  in  valuing  property  for  taxation  to  be 
"final"  and  "not  subject  to  revision"  had  in  contemplation  their 
lawful  acts,  and  not  such  as  are  prompted  by  corrupt,  arbitrary, 
or  fraudulent  motives,  and  in  violation  of  constitutional  or  statu- 
tory rights.  The  statute  under  which  the  board  was  organized 
limits  its  power  to  fix  values  on  property  at  its  "fair  market 
value." 

The  Legislature  has  no  power  to  create  any  board  or  com- 
mission and  empower  it  to  confiscate  any  person's  property,  either 
directly  or  indirectly.  To  arbitrarily  value  one  person's  prop- 
erty for  taxation  at  largely  more  than  it  is  worth,  while  an- 
other's, subject  to  the  same  rate  of  taxation,  is  placed  at  greatly 
less  than  its  value,  is  a  clear  violation  of  our  Constitution,  be- 
cause the  tax  in  such  a  case  is  not  equal  and  uniform,  and  the 
property  of  the  county  is  not  taxed  in  proportion  to  its  value.  It 
is  an  arbitrary  wrong  done  the  former  in  his  "lands  and  goods" 
and  a  fraud  upon  his  rights,  for  which  he  has  a  remedy  in  the 
courts  of  the  State  guaranteed  by  Sec.  13  of  our  Bill  of  Rights, 
which  declares:  "All  courts  shall  be  open,  and  every  person  for 
an  injury  done  him  in  his  lands,  goods,  person  or  reputation  shall 
have  remedy  by  due  course  of  law."  Texas  Constitution,  Art.  1, 
Sec.  13. 

By  due  course  of  law  reference  is  here  made  not  only  to  the 
valid  statutory  enactments  of  the  Legislature,  but  to  the  general 
law  of  the  land — "a  law  which  hears  before  it  condemns,  which 
proceeds  upon  inquiry,  and  renders  judgment  only  after  trial. 
The  meaning  is  that  every  citizen  shall  hold  his  life,  liberty, 
property  and  immunities  under  the  protection  of  the  general  rules 
which  govern  society."  Cooley's  Principles  of  Constitutional 
Law,  pp.  231,  232, 

Our  statute  (Article  5120)  seems  to  contemplate  that  the 
board  of  equalization  shall  constitute  a  kind  of  judicial  tribunal. 
It  is  formed  out  of  the  Commissioners'  Court,  which  is  required 
to  convene  and  sit  as  a  board  of  equalization  at  a  certain  time  and 
place.  It  shall  have  power  to  send  for  persons,  books,  and  pa- 
pers, swear  and  qualify  persons  to  ascertain  the  value  of  prop- 
erty, and  see  that  every  person  has  rendered  his  property  at  a 
fair  market  value.  And  whenever  they  shall  find  it  their  duty  to 
12 


178  Taxation  in  Texas. 

raise  the  assessment  of  any  person's  property  the  county  clerk 
shall  give  such  person  written  notice  that  they  desire  to  raise  the 
value  of  the  sarrie. 

These  provisions  clearly  contemplate  that  the  value  to  be  fixed 
by  the  board  where  a  contest  is  made,  shall  be  the  result  of  their 
deliberate  judgment,  exercised  in  the  light  of  the  facts  proven,  as 
well  as  of  matters  within  their  own  knowledge,  the  proceeding 
being  judicial  in  its  character.  If,  therefore,  these  boards  can 
arbitrarily  ignore  the  facts,  the  provisions  of  the  statute  requir- 
ing the  party  whose  assessment  is  to  be  raised  to  have  written 
notice  thereof  would  be  a  mockery  and  a  farce.  Johnson  v. 
Holland,  43  S.  W.  71 ;  17  Tex.  Civ.  App.  210. 

A  party  seeking  by  injunction  equitable  relief  against  an  al- 
leged unauthorized  action  by  the  board  of  equalization  must  estab- 
lish clearly  facts  showing  that  the  board  had  acted  illegally  and 
without  authority.    /.  &  G.  N.  R.  R.  Co.  v.  Smith  Co.,  54  Tex.  1. 

If  the  board  of  equalization,  in  determining  the  proper  valua- 
tion of  property  for  taxes,  errs,  and  affixes  a  valuation  deemed  by 
the  taxpayer  to  be  excessive,  that  fact  gives  him  no  right  to 
resort  to  the  courts  for  relief.  /.  &  G.  N.  R.  R.  Co.  v.  Smith  Co., 
54  Tex.  1. 

When  a  question  of  valuation  for  taxation  has  been  once  regu- 
larly referred  to  the  proper  board  of  equalization,  the  valuation  of 
that  tribunal  is  final.  T.  &  P.  R.  R.  Co.  v.  Harrison  County,  54 
Tex.  119. 

Where  city  property,  is  not  rendered  for  taxation,  but  the  owner 
is  known,  and  it  is  listed  and  valued  by  the  assessor,  such  valua- 
tion can  not  be  increased  by  the  board  of  appeal  and  revision, 
without  notice  to  the  owner.  City  of  San  Antonio  v.  Hoefling,  39 
S.  W.  918 ;  90  Tex.  511. 

Where  a  tax  is  in  part  legal  and  in  part  illegal  and  is  capable 
of  apportionment,  the  court  will  give  judgment  for  that  part 
thereof  which  might  be  levied.  Nalle  v.  City  of  Austin,  44  S.  W. 
66,  91  Tex.  424. 

§  238.     Determining  powers  of  board  and  assessor. 

The  board  of  equalization  was  created  by  the  Constitution  itself, 
and  its  duties  were  sufficiently  defined  in  the  Act  of  August  21, 
1876,  to  make  it  competent  to  determine  the  valuation  of  property 
listed,  when  that  question  was  properly  referred  to  it,  either 
under  Section  5  or  Section  17  of  that  act. 


Board  of  Appraisers.  179 

When  a  taxpayer  renders  his  tax  list  to  the  assessor  in  person, 
and  after  answering  all  questions  by  him,  subscribes  the  oath 
prescribed  by  the  statute,  if  the  assessor,  for  cause  deemed  suffi- 
cient, proceeds  then  and  there  to  change  the  valuation,  and  the 
taxpayer  then  makes  oath  that  the  valuation  is  excessive,  the 
case  is  one  coming  within  the  provisions  of  Section  17  of  the  Act 
"of  1876.  If,  however,  the  valuation  be  forwarded  by  mail,  oath 
being  made  to  the  list,  out  of  the  county  in  which  it  is  rendered, 
before  some  other  officer,  the  case  is  then  under  the  provisions 
of  Section  5,  and  the  assessor,  if  dissatisfied,  is  neither  required 
or  empowered  to  affix  a  valuation,  but  should  refer  the  same  to 
the  board  of  equalization.  If  forwarded,  not  by  mail,  but  con- 
veyed by  another  party,  it  would  still  be  under  Section  5.  Inter- 
national &  G.  N.  Ry.  Co.  V.  Smith  County,  54  Tex.  1. 

When  a  question  of  valuation  for  taxation  has  been  once  reg- 
ularly referred  to  the  proper  board  of  equalization,  the  valuation 
of  that  tribunal  is  final.  Texas  &  Patcific  Ry.  Co.  v.  Harrison 
County,  54  Tex.  119. 

§  239.     Deputy  assessor  sitting  as  member  of  board. 

•  A  deputy  assessor,  who  was  also  a  county  commissioner,  sat  as 
a  member  of  the  board  of  equalization  to  revise  the  assessment 
of  property  for  taxes,  to  which  board  the  question  of  valuation 
was  referred  on  the  protest  of  a  taxpayer.    Held — 

(1)  The  action  of  the  board  of  equalization  was  not  void,  the 
taxpayer  not  objecting  at  the  time  to  the  deputy  assessor  consti- 
tuting a  portion  of  the  board,  and  it  not  being  shown  that  there 
was  not  a  quorum  of  the  board  without  the  deputy  assessor. 
Texas  &  Pacific  Ry.  Co.  v.  Harrison  County,  54  Tex.  119. 

§  240.     Fraud — Reduction — Failure  to  appear — Notice. 

A  petition  to  restrain  the  collection  of  a  tax  because  based  on  a 
fraudulent  overvaluation  of  the  assessor,  which  •  alleges  merely 
that  the  assessment  was  never  by  the  assessor  presented  to  the 
board  of  equalization,  or  passed  on  directly  by  such  board,  does 
not  show  that  the  board  did  not  approve  the  assessment  com- 
plained of. 

Under  Sayles'  Civ.  St.,  Arts.  5120  et  seq.,  providing  for  the 
convening  of  the  Commissioners'  Court  at  certain  times  as  a 
board  of  equalization  to  correct,  equalize,  and  approve  assess- 
ments, when  the  court  has  once  approved  an  assessment  it  has 
no  jurisdiction  to  reduce  it  on  application  of  a  taxpayer. 


180  Taxation  in  Texas. 

The  fact  that  the  officer  of  a  corporation  who  alone  was  in- 
trusted with  the  duty  of  rendering  the  corporate  property  for 
taxation  has  been  sick  for  several  months  does  not  excuse  the 
corporation  from  failure  to  render  its  property,  or  to  appear 
before  the  board  of  equalization  to  object  to  the  valuation  thereof, 
it  having  been  assessed  as  unrendered,  so  as  to  entitle  the  corpora- 
tion to  object  to  the  assessment  as  fraudulent  after  its  approval 
by  the  board. 

Where  a  taxpayer  does  not  object  to  an  assessment,  the  board 
of  equalization  need  not  notify  him  to  appear  before  it.  Clcm/son 
Lumber  Co.  v.  Jones,  S.  W.,  Vol.  49,  page  909 ;  20  Tex.  Civ.  App. 
208. 

§  241.     Appellate  jurisdiction  from  city  board  valid. 

Under  the  Constitution,  providing  that  the  Legislature  shall 
have  power,  by  local  or  general  law,  to  increase,  diminish,  or 
change  the  civil  and  criminal  jurisdiction  of  county  courts,  the 
Legislature  is  authorized  to  confer  on  the  county  court  of  Travis 
County  appellate  jurisdiction  of  proceedings  of  the  board  of 
equalization  of  the  city  of  Austin.  Nolle  v.  City  of  Austin,  Vol. 
56,  S.  W.,  p.  954;  23  Tex.  Civ.  App.  595. 

§  242.     De  facto  officers. 

Persons  who  fill  the  office  of  the  board  of  equalization  of  a  city 
are  at  least  de  facto  officers,  and  their  legal  appointment  will  be 
presumed  until  the  contrary  is  shown.  Nolle  v.  City  of  Austin, 
Vol.  56,  S.  W.,  p.  954 ;  23  Tex.  Civ.  App.  595. 

Where  certain  members  of  a  city  board  of  equalization  held 
over  after  the  termination  of  their  term,  their  places  not  having 
been  filled  by  appointment,  and  plaintiff  and  other  taxpayers  of 
the  city  appeared  and  recognized  them  as  constituting  a  legal 
board  of  equalization,  their  acts  were  valid  as  a  de  facto  board. 
Nalle  V.  City  of  Austin,  93  S.  W.  141,  41  Tex.  Civ.  App.  423. 

§  243.     No  power  to  add  property  to  list. 

Const.,  Art.  8,  Sec.  5,  provides  that,  if  any  railroad  property 
subject  to  municipal  taxation  shall  not  have  been  rendered  for 
taxation,  the  city  shall  have  power  to  require  its  rendition,  and 
Section  11  provides  that  all  property  rendered  for  taxation  by  the 
owner  shall  be  assessed  at  its  fair  yalue  by  the  proper  officer. 
San  Antonio  City  Charter,  Sec.  194,  empowers  a  board  of  appeal 
to  hear  grievances  as  to  assessments  made  by  the  assessor,  and  "to 


Board  of  Appraisers.  181 

increase  or  diminish  any  assessment,"  as  it  may  deem  just.  Sec- 
tion 193  provides  that  the  assessor  shall  assess  and  return  all 
property  subject  to  taxation,  and  shall  list  the  same,  and  that  all 
property  not  returned  by  the  owner  shall  be  assessed  by  the  as- 
sessor. Held,  that  the  board  of  appeals  has  no  power  to  add  a 
franchise  of  a  railroad  company  to  the  list  of  its  property,  on 
account  of  the  company's  and  the  assessor's  failure  to  list  it.  San 
Antonio  St.  Ry.  Co.  v.  City  of  San  Antonio,  S.  W.,  Vol.  54,  p. 
907 ;  22  Tex.  Civ.  App.  34. 

Under  Rev.  St.  1895,  Tit.  104,  Chap.  3,  providing  the  method 
of  making  tax  assessment,  the  Commissioners'  Court,  sitting  as  a 
board  of  equalization,  has  no  power  to  assess  property  for  taxes ; 
such  authority,  save  in  exceptional  cases,  being  vested  in  the 
county  assessors. 

In  the  absence  of  statutory  authority,  a  board  of  equalization 
can  not  assess  property  not  listed  and  valued  by  the  assessor. 

Rev.  St.  1895,  Art.  5124,  as  amended  by  Acts  1907,  p.  459, 
ChapN  11,  provides  that  the  board  of  equalization  shall  supervise 
the  assessment  of  their  respective  counties,  and,  if  satisfied  that 
the  valuation  of  any  property  is  not  in  accordance  with  law,  in- 
crease or  diminish  it,  and  affix  a  proper  valuation  of  the  same,  and 
that,  when  the  assessor  shall  furnish  the  Commissioners'  Court 
with  the  rendition  as  provided  in  Article  5123,  it  shall  be  the 
court's  duty  to  hear  evidence  and  fix  the  value  of  the  property  in 
accordance  therewith.  Held,  that  a  board  of  equalization  has 
no  power  to  add  to  the  rolls  property  not  previously  assessed,  nor 
to  take  from  the  rolls  property  contained  therein. 

The  addition  of  alleged  omitted  property  to  plaintiff's  assess- 
ment by  a  board  of  equalization  being  void,  he  was  not  required 
to  show  that  he  had  applied  to  the  board  for  relief  in  order  to 
have  the  assessment  of  such  property  annulled,  and  the  collection 
of  the  tax  enjoined.     Sullivan  v.  Bitter,  113  S.  W.  193. 

§  244.     Excessive  assessment  from  fraudulent  motives. 

The  District  Court  has  jurisdiction  to  entertain  a  petition  for  an 
injunction  to  restrain  the  collection  of  a  tax  based  upon  an  assess- 
ment that,  as  to  the  petitioner,  is  unreasonably  excessive  and 
fraudulently  made,  where  the  amount  involved  is  within  the 
court's  jurisdiction. 

A  petition  for  an  injunction  restraining  the  collection  of  a  tax, 
which  states  that  the  tax  was  based  upon  an  assessment  which 


182  Taxation  in  Texas. 

was   unreasonably  excessive,   and  made   in   fraud  of  plaintiff's 
rights,  and  discriminates  against  him,  states  a  cause  of  action. 

When  the  board  of  equalization,  in  raising  or  fixing  the  value 
of  property,  acts  from  corrupt  and  fraudulent  motives,  and  in 
violation  of  the  laws  of  the  state,  their  acts  are  voidable  at  the 
suit  of  the  party  aggrieved;  and  Rev.  St.  1895,  Art.  5124,  pro- 
viding that  the  acts  of  the  board  of  equalization  "shall  be  final 
and  not  subject  to  revision  by  said  board  or  any  other  tribunal 
thereafter,"  was  not  intended  to  preclude  any  person  from  apply- 
ing to  the  courts  for  relief  in  such  cases.  Johiison  v.  Holland, 
43  S.  W.  71,  17  Tex.  Civ.  App.  210. 

§  245.     County  commissioners  not  liable  in  civil  action. 

The  members  of  a  county  commissioners'  court  are  not  liable 
in  a  civil  action  to  one  whose  property  has  been  wrongfully  taken 
by  the  tax  collector  in  pursuance  of  such  commissioners'  order 
to  collect  a  tax  levied  by  them  in  a  district  which  they  have  er- 
roneously determined  to  be  within  their  jurisdiction. 

Exemplary  damages  can  not  be  recovered  either  of  the  officer 
collecting  or  the  board  levying  a  tax  on  the  inhabitants  of  a  dis- 
trict which  the  board  has  erroneously  determined  lies  within  its 
jurisdiction,  though  property  has  been  wrongfully  and  illegally 
seized  in  consequence  of  the  order  for  collection.  Wright  v. 
Jones,  38  S.  W.  249,  14  Tex.  Civ.  App.  423. 

§  246.     Valuation  must  first  be  made  by  assessor. 

Under  a  city  charter  providing  that,  where  property  is  not 
returned  to  the  assessor  after  notice,  he  shall  assess  it  in  the 
name  of  the  last  known  owner,  and  that  the  value  shall  be  de- 
termined by  the  board  of  revision  to  whom  is  given  the  power  to 
correct  errors,  etc.,  the  valuation  is  to  be  made  in  the  first  instance 
by  the  assessor,  subject  only  to  revision  by  the  board.  Hoefling 
V.  City  of  San  Antonio,  38  S.  W.  1127,  15  Tex.  Civ.  App.  257. 

§  247.     Owner  must  have  notice  of  increase  of  valuation. 

Where  a  city  board  of  tax  revision  increases  the  valuation  of 
property  for  tax  purposes,  without  notice  to  the  owner,  a  levy 
made  in  accordance  therewith  creates  no  lien  on  the  property. 

Where  several  tracts  of  land  belonging  to  one  owner  are  listed 
and  valued  separately,  an  increase  in  the  valuation  of  some  of  the 
tracts  by  the  board  of  revision,  without  notice  to  the  owner,  ren- 


Board  of  Appraisers.  183 

ders  the  levy  invalid  only  as  to  the  tracts  so  increased.  HoeHing 
V.  City  of  San  Antonio,  38  S.  W.  1127,  15  Tex.  Civ.  App.  257. 

Where  property  is  not  rendered  for  taxation,  and  the  owner 
was  known,  it  was  the  duty  of  the  assessor,  not  only  to  list  it  in 
the  name  of  the  owner,  but  also  to  value  it  for  taxation,  and 
the  board  of  appraisement  has  no  power  to  increase  that  value 
without  notice  to  the  owner.  City  of  San  Antonio  v.  Hoe/ling, 
39  S.  W.  918;  San  Antonio  v.  Hoetling,  90  Tex.  513. 

Under  Subdivision  1,  requiring  the  board,  on  raising  one's  as- 
sessments, to  give  him  "written  notice,"  a  postal  card  containing 
such  notice,  mailed  to  the  taxpayer  by  the  clerk,  is  sufficient,  and 
any  defect  therein  is  waived  if  the  taxpayer  appears,  and  the 
board  give  him  a  full  hearing.  Grahani  v.  Lasater,  26  S.  W. 
472. 

§  248.     List  must  be  presented  to  board. 

Where,  before  taxes  assessed  can  become  a  lien  on  land,  the 
tax  list  must  be  presented  to  the  board  of  equalization  for  ap- 
proval and  for  correction  of  any  errors  in  the  listing  of  property, 
under  Gen.  Laws  Tex.  44,  an  injunction  will  not  be  granted  be- 
fore such  approval  to  restrain  an  assessor  of  a  county  from  as- 
sessing lands  claimed  to  be  in  another  county.  Chisholm  v.  Ad- 
ams, 10  S.  W.  336,  71  Tex.  678. 

§  249.     Action  of  board  final. 

Plaintiff,  in  an  action  to  restrain  collection  of  taxes,  alleged 
that  his  land  was  assessed  at  an  agreed  valuation  between  him 
and  the  assessor,  who  afterwards  unlawfully  listed  it  at  a  higher 
valuation ;  that  he  was  cited  to  show  cause  before  the  board  of 
equalization  why  his  assessment  be  not  raised,  but  he  did  not; 
that  the  board  made  no  order  changing  or  affecting  the  valuation 
of  his  land  as  theretofore  listed ;  that  the  assessor  had  no  power 
to  change  the  assessment  made  by  him  without  an  order  of  the 
board  in  open  court,  and  entered  in  the  minutes;  but  did  not 
state  that  he  applied  to  the  board  to  correct  the  assessment,  nor 
give  a  reason  for  not  doing  so,  nor  that  he  could  not  obtain  re- 
lief in  that  way,  if  entitled  to  it.  Held,  that  under  Rev.  St.  Tex., 
Art.  4715,  which  provides  that  the  board  shall  have  power  to 
increase  or  diminish  the  valuation  of  any  property,  and  affix  a 
proper  one,  and  that  such  action  shall  be  final,  and  not  subject 
to  revision  thereafter  by  said  board  or  any  other  tribunal,  plain- 


184  Taxation  in  Texas. 

tiff's  failure  to  show  cause,  when  cited,  precluded  him  from  after- 
wards questioning  the  increased  valuation.  Duck  v.  Peeler,  11 
S.  W.  1111,  74  Tex.  268. 

§  250.     Acts  of  two  members  valid. 

Acts  of  two  members  of  a  board  of  equalization  are  valid,  with- 
out co-operation  of  the  third.  Ferris  v.  Kemhle,  12  S.  W.  689, 
75  Tex.  476;  Grahmi  v.  Lasater,  26  S.  W.  472. 

§  251.     Meeting  of  board  after  time. 

Sayles'  Civ.  St.,  Art.  1517a,  Subd.  1,  providing  that  the  county 
commissioners'  courts  shall  convene  and  sit  as  a  board  of  equal- 
ization on  the  second  Monday  in  June,  "or  as  soon  thereafter  as 
practicable  before  the  first  day  of  July,"  does  not  render  a  contin- 
uation of  their  proceedings  into  July  a  nullity.  Graham  v.  Lasa- 
ter, 26  S.  W.  472. 

§  252.     Not  required  to  classify  property  on  minutes. 

The  fact  that  one  of  the  commissioners  steps  out  for  a  moment 
during  the  proceedings  is  immaterial  if  no  vote  is  taken  during 
his  absence.    Graham  v.  'Lasater,  26  S.  W.  472. 

§  253.     Valuation. 

In  a  suit  to  enjoin  the  collection  of  taxes  on  the  ground  that, 
under  the  rule  of  the  commissioners'  court,  the  land  was  assessa- 
ble at  two-thirds  of  its  fair  cash  market  value,  but  plaintiff's  lands 
were  willfully  assessed  at  more  than  such  value,  while  the  lands 
of  resident  owners  were  assessed  at  less  than  such  value,  in  order 
to  raise  the  question  on  appeal  whether  plaintiff  was  discriminated 
against,  a  finding  should  have  been  requested  as  to  whether  the 
property  of  others  was  assessed  according  to  the  court's  rule, 
and  whether  plaintiff's  property  was  assessed  at  a  higher  rate. 

It  can  not  be  assumed  from  a  finding  that  plaintiff's  property 
was  worth  as  much  or  more  than  the  value  placed  upon  it  that 
the  court  would  have  found  that  its  valuation  was  more  than 
two-thirds  of  its  fair  cash  market  value. 

In  a  suit  to  enjoin  the  collection  of  taxes  on  the  ground  that 
the  commissioners'  court  rule  required  the  land  to  be  assessed  at 
two-thirds  of  its  fair  cash  market  value,  but  plaintiff's  land  was 
willfully  assessed  at  more  than  such  value,  while 'the  lands  of 
resident  owners  were  assessed  at  less,  so  as  to  discriminate  against 
plaintiff,  testimony  as  to  the  value  of  the  timber  per  thousand 


Board  of  Appraisers.  185 

feet  on  the  several  tracts  belonging  to  plaintiff  taken  as  a 
whole  was  admissible  as  tending  to  show  the  value  of  each  par- 
ticular tract;  plaintiff's  land  consisting  of  a  large  number  of 
tracts  situated  on  a  railroad  relatively  close  together.  Lufkin 
Land  and  Lumber  Co.  v.  Noble,  127  S.  W.  1093. 

Where  it  did  not  conclusively  appear  that  a  city  board  of  equal- 
ization abused  its  discretion  in  fixing  the  valuation  of  certain 
property,  the  action  of  the  board  is  final  and  can  not  be  disturbed. 
Linz  V.  City  of  Sherman,  62  S.  W.  71. 

§  254.     No  criterion  of  value  in  condemnation. 

The  value  of  land  for  taxation,  though  fixed  by  the  owner  when 
assessed,  forms  ho  criterion  of  its  value  in  a  proceeding  to  con- 
demn it  for  a  railroad  right  of  way.  Crystal  City  &  U.  R.  Co.  v. 
Isbell,  126  S.  W.  47. 

§  255.     Const.  Art.  8,  Sec.  18,  applies  to  state  and  county  taxes. 

Const.,  Art.  8,  Sec.  18,  which  discloses  that  the  county  com- 
missioners' court  shall  constitute  a  board  for  equalizing  assess- 
ments, applies  to  state  and  county  taxes,  and  not  to  city  taxes. 
Scdllaxrd  v.  City  of  Dallas,  42  S.  W.  640,  16  Tex.  Civ.  App.  620. 

§  256.     Board  of  Appeals  not  necessary  where. 

A  property  owner  who  does  not  in  any  way  complain  of  the 
assessment  of  his  property  can  not  resist  payment  of  the  tax 
levied  according  to  such  assessment  on  the  ground  that  there  is 
no  proper  board  of  appeals  to  pass  upon  objections  to  assess- 
ments. Scollard  v.  City  of  Dallas,  42  S.  W.  640,  16  Tex.  Civ. 
App.  620. 


CHAPTER  XII. 


SUMMARY  SALE  OF  PROPERTY  FOR  TAXES  DUE. 


Sec.  Sec. 

257.  Difference    between    sale    of      270. 

property     under     summary 

sale  and  sale  under  a  regu-      271. 

lar  judgment  of  foreclosure. 

258.  Constitutional   provision.  272. 

259.  Forced  collection  to  begin — 

When.  273. 

260.  Personal    property    may    be 

pointed  out.  274. 

261.  Tax  lien  superior  to  assign- 

ment —  Attachment  —  In-  275. 
heritance  or  devise  except  276. 
when. 

262.  All  property  liable  for  taxes.      277. 

263.  Sales  of  personal  property — 

How  made.  278. 

264.  If   the  property  levied   upon      279. 

be  insufficient.  280. 

265.  Sale  of  real  estate  when  per-      281. 

sonal    property     is    insuffi- 
cient. 

266.  Notice  of  the  sale  of  real  es-      282. 

tate   for  taxes — How  made. 

267.  List  to  be  posted.  283. 

268.  Sale  of  real   estate   may  be      284. 

continued  from  day  to  day.      285. 

269.  Sales  of  land— How  made.  286. 


The  tax  deed  and  its  requi- 
sites. 

Sales  to  be  reported  to  the 
commissioners'  court. 

Redemption  of  land  sold  for 
taxes. 

Redemption  from  private  pur- 
chasers. 

Receipt  of  collector's  notice 
—When. 

Relief— When. 

Certicate  of  redemption  from 
collector. 

Lands  to  be  bid  in  for  State 
—When. 

May  redeem — How. 

If  not  redeemed. 

May  redeem  in  what  manner. 

Commissioner's  board  to  sit 
as  a  board  of  inquiry — 
When. 

Sale  for  taxes  due  towns  and 
cities. 

Sheriff  to  execute  deeds. 

What  must  be  proven. 

Summary  sale  not  nullified. 

Summary  sale  prohibited  by 
Constitution  of  1869. 


§  257.  Difference  between  sale  of  property  under  summary 
sale  and  sale  under  a  regular  judgment  of  foreclos- 
ure. 

It  has  almost  become  proverbial  in  Texas  to  say  that  land  ac- 
quired under  a  sale  for  taxes  can  not  be  held  and  that  such  a  title 
is  invalid.  This  is  true  in  regard  to  land  acquired  under  an  ex 
parte  sale  made  by  the  tax  collector,  for  the  purchaser,  in  order 
to  maintain  his  title,  would  have  to  prove  every  condition  prece- 
dent to  the  sale.    Beginning  with  the  levy  he  would  have  to  prove 


Summary  Sale  of  Property  for  Taxes.  187 

step  by  step  every  act  to  have  been  legally  taken ;  every  notice 
to  have  been  properly  given.  This  is  because  the  sale  is  an  ex 
parte  proceeding  and  the  delinquent  taxpayer  has  not  had  his 
day  in  court.  An  entirely  different  construction  will  be  given, 
however,  to  a  sale  made  under  a  regular  decree  of  foreclosure, 
when  proper  parties  have  been  made  and  the  proceedings  regu- 
lar, which  they  would  have  to  be  in  any  other  suit  to  give  valid- 
ity to  the  decree.  A  sale  under  such  a  judgment  would  be  as 
binding  as  a  sale  and  foreclosure  of  any  other  kind  of  decree  of 
foreclosure,  subject  only  to  the  right  of  the  owner  to  redeem 
within  two  years.  See  Haynes  v.  State,  44  Tex.  Civ.  App.  492; 
Cooper  Grocery  Co.  v.  City  of  Waco,  71  S.  W.  619. 

§  258.     Constitutional  provision. 

Provision  shall  be  made  by  the  first  legislature  for  the  speedy 
sale  of  a  sufficient  portion  of  all  lands  and  other  property  for 
the  taxes  due  thereon,  and  every  year  thereafter  for  the  sale  of 
all  lands  and  other  property  upon  which  the  taxes  have  not  been 
paid,  and  the  deed  of  conveyance  to  the  purchaser  for  all  lands 
and  other  property  thus  sold  shall  be  held  to  vest  a  good  and  per- 
fect title  in  the  purchaser  thereof  subject  to  be  impeached  only 
for  actual  fraud;  provided,  that  the  former  owner  shall,  within 
two  years  from  date  of  purchaser's  deed,  have  the  right  to  re- 
deem the  land  upon  the  payment  of  double  the  amount  of  money 
paid  for  the  land.    St.  Const.,  Art.  8,  Sec.  13. 

This  section  does  not  secure  a  right  to  redeem  land  sold  by 
decree  of  court,  in  suits  for  the  enforcement  of  taxes.  San  An- 
tonio V.  Berry,  92  Tex.  320,  48  S.  W.  497. 

The  right  of  redemption  secured  to  the  owner  by  this  section 
applies  to  only  "speedy  sale,"  for  which  the  legislature  was  re- 
quired to  make  provision. 

This  section  only  states  the  object  of  the  deed,  when  the  law 
has  been  complied  with.    Meredith  v.  Coker,  65  Tex.  31. 

§  259.     Forced  collection  to  begin  when. 

If  any  person  shall  fail  or  refuse  to  pay  the  taxes  imposed  upon 
him  or  his  property  by  law,  until  the  first  day  of  January  next 
succeeding  the  return  of  the  assessment  roll  of  the  county  to  the 
comptroller,  the  collector  of  taxes  shall,  by  virtue  of  his  tax  roll, 
seize  and  levy  upon,  and  sell  so  much  personal  property  belonging 
to  such  person  as  may  be  sufficient  to  pay  his  taxes,  together 


188  Taxation  in  Texas. 

with  all  costs  accruing  thereon ;  provided,  there  shall  be  no  levy 
on  property  when  the  owner  thereof  has  the  right  to  pay  at  the 
comptroller's  office,  until  a  list  of  the  persons  who  have  paid  their 
taxes  at  said  office  has  been  furnished  the  collector  of  taxes  by 
the  comptroller.  The  comptroller  shall  forward  said  list  of  paid 
taxes  on  or  before  the  first  day  of  February  of  each  year,  and  the 
tax  collector  shall,  immediately  on  receipt  of  said  list  from  the 
comptroller,  levy  on  and  sell  the  property  of  such  non-residents 
as  have  not  paid  their  taxes,  in  accordance  with  the  law  regulat- 
ing the  sale  of  the  property  for  taxes.    Sayles  R.  S.,  Art.  5173. 

§  260.     Personal  property  may  be  pointed  out. 

If  any  person  shall  point  out  to  the  collector  of  taxes  sufficient 
personal  property  belonging  to  him  to  pay  all  taxes  assessed 
against  him  before  the  first  day  of  January  of  any  year,  the  col- 
lector shall  immediately  levy  upon  and  sell  such  property  so 
pointed  out,  in  accordance  with  the  laws  regulating  tax  sales  of 
a  similar  class  of  property.    Sayles  R.  S.,  Art.  5174. 

§  260a.  When  property  about  to  be  removed  from  the  county. 
If  it  comes  to  the  knowledge  of  the  collector  that  any  personal 
property  assessed  for  taxes  on  the  rolls  is  about  to  be  removed 
from  the  county,  and  the  owner  of  such  property  has  not  other 
property  in  the  county  sufficient  to  satisfy  all  assessments  against 
him,  the  collector  shall  immediately  levy  upon  a  sufficiency  of 
such  property  to  satisfy  such  taxes  and  all  costs,  and  the  same 
sell  in  accordance  with  the  law  regulating  sales  of  personal  prop- 
erty for  taxes,  unless  the  owner  of  such  property  shall  give  bond, 
with  sufficient  security  payable  to  and  to  be  approved  by  the  col- 
lector, and  conditioned  for  the  payment  of  taxes  due  on  such 
property,  on  or  before  the  first  day  of  January  next  succeeding. 
Sayks  R.  S.,  Art.  5175. 

§  261.  Tax  lien  superior  to  assignment,  attachment,  inherit- 
ance or  devise,  except  when 
In  all  cases  where  a  taxpayer  makes  an  assignment  of  his  prop- 
erty for  the  payment  of  his  debts,  or  where  his  property  is  levied 
upon  by  creditors,  by  writs  of  attachment  or  otherwise,  or  where 
the  estate  of  a  decedent  is  or  becomes  insolvent,  and  the  taxes 
assessed  against  such  person  or  party,  or  against  any  of  his  es- 
tate, remain  unpaid  in  part  or  in  whole,  the  amount  of  such  un- 


Summary  Sale  of  Property  for  Taxes.  189 

paid  taxes  shall  be  a  first  Hen  upon  all  such  property;  provided, 
that  when  taxes  are  due  by  an  estate  of  a  deceased  person,  the 
lien  herein  provided  for  shall  be  subject  to  the  allowances  to  wid- 
ows, and  minors,  funeral  expenses,  and  expenses  of  last  sickness ; 
and  such  unpaid  taxes  shall  be  paid  by  the  assignee  when  said 
property  has  been  assigned,  by  the  sheriff  out  of  the  proceeds  of 
sale  in  case  such  property  has  been  seized  under  attachment  or 
other  writ,  and  by  the  administrator  or  other  legal  representa- 
tive of  decedents,  and  if  said  taxes  shall  not  be  paid,  all  said  prop- 
erty may  be  levied  on  by  the  tax  collector  and  sold  for  such  taxes 
in  whomsoever's  hands  it  may  be  found.    Sayles  R.  S.,  Art.  5175a. 

§  262.     All  property  liable  for  taxes. 

All  real  or  personal  property  held  or  owned  by  any  person  in 
this  state  shall  be  liable  for  all  state  and  county  taxes  due  by  the 
owner  thereof,  including  taxes  on  real  estate,  personal  property 
and  poll  tax;  and  the  collector  of  taxes  shall  levy  on  any  per- 
sonal or  real  property  to  be  found  in  his  county  to  satisfy  all 
delinquent  taxes,  any  law  to  the  contrary  notwithstanding. 
Sayles'  R.  S.,  Art.  5176. 

§  263.     Sales  of  personal  property,  how  made. 

In  making  sales  of  personal  property  for  taxes,  the  collector 
shall  give  notice  of  the  time  and  place  of  sale,  together  with  a 
brief  description  of  the  property  levied  on  and  to  be  sold,  for 
at  least  ten  days  previous  to  the  day  of  sale,  by  advertisements 
in  writing  to  be  posted  at  the  courthouse  door,  and  at  two  other 
public  places  in  the  county ;  and  such  sale  shall  take  place  at  the 
courthouse  door  of  the  county  in  which  the  assessment  is  made, 
by  public  auction.    Sayles  R.  S.,  Art.  5177. 

§  264.     If  the  property  levied  upon  be  insufficient. 

If  personal  property  levied  upon  be  insufficient  to  satisfy  the 
taxes  and  penalties  due  and  costs  accrued  thereon,  the  collector 
shall  levy  upon  and  sell  so  much  other  personal  taxable  property 
belonging  to  the  person  as  will  be  sufficient  to  satisfy  such  taxes, 
penalties  and  costs  in  the  same  manner  as  an  original  levy  and 
sale;  and  in  all  cases  of  sales  for  taxes,  if  there  be  an  excess 
remaining  in  the  hands  of  the  collector,  after  satisfying  all  taxes, 
penalties  and  costs,  the  same  shall  be  paid  over  to  the  original 
owner  by  the  collector,  or  deposited  in  the  hands  of  the  county 


190  Taxation  in  Texas. 

treasurer  subject  to  the  order  of  such  owner.    Sayles  R.  S.,  Art. 
5178. 

§  265.  Sale  of  real  estate  when  personal  property  is  insuffi- 
cient. ^ 
If  the  delinquent  is  not  possessed  of  a  sufficiency  of  personal 
property  in  the  county,  subject  to  seizure  and  sale,  to  satisfy  all 
taxes  due  by  him,  the  collector  of  taxes  shall  seize  so  much  of  the 
real  estate  of  such  delinquent,  situated  in  the  county,  as  will  be 
sufficient  to  satisfy  such  taxes  and  all  costs,  and  the  same  sell  in 
accordance  with  the  provisions  of  the  succeeding  article.  Sayles 
R.  S.,  Art.  5179. 

§  266.     Notice  of  the  sale  of  real  estate  for  taxes,  how  made. 

In  making  sales  of  real  property  for  taxes  the  collector  shall 
advertise  the  same  for  sale  in  some  newspaper  published  in  the 
county  where  the  land  is  to  be  sold,  for  three  successive  weeks, 
if  there  be  one,  and  the  publisher  of  such  newspaper  shall  receive 
as  compensation  not  exceeding  twenty-five  cents  for  each  tract  or 
parcel  of  land  so  advertised,  to  be  taxed  as  other  costs  of  sale 
against  such  land ;  provided  the  cost  of  advertising  in  a  news- 
paper shall  be  deducted  from  the  fees  allowed  the  collector  for 
advertising;  and  provided,  that  the  comptroller  shall  allow  the 
collector  twenty-five  cents  per  tract  for  each  tract  of  land  bid  off 
by  the  state ;  and  if  there  be  no  newspaper  published  in  the  county, 
or  there  being  a  newspaper  published  in  the  county,  and  the  pub- 
lisher thereof  refuses  to  publish  the  advertisement  at  the  price 
herein  fixed,  then  advertisement  shall  be  made  by  posting  the 
same  for  thirty  days  previous  to  the  day  of  sale,  at  the  court- 
house door  and  three  other  public  places  in  the  county  where  the 
land  or  lots  are  situated,  giving  in  said  advertisement  such  de- 
scription as  is  given  to  the  same  on  the  tax  rolls  in  his  hands, 
stating  the  name  of  the  owner,  if  known,  and  if  unknown  say 
"unknown,"  together  with  the  time,  place  and  term  of  sale,  said 
sale  to  be  for  cash,  to  the  highest  bidder,  at  public  outcry,  at 
the  courthouse  door  and  between  legal  hours,  on  the  first  Tues- 
day of  the  month.    Sayles  R.  S.,  Art.  5180. 

A  failure  to  give  the  notice  required  by  law  of  the  place  where 
tax  sale  will  occur  vitiates  the  same.  A  recitation  in  the  tax  deed 
that  the  tax  collector  offered  the  land  at  public  auction  at  the 
time,  place  and  in  the  manner  required  by  law  is  not  evidence  of 
either  fact.  Henderson  v.  White,  69  Tex.  103,  5  S.  W.  374. 


Summary  Sale  of  Property  for  Taxes.  191 

§  267.     List  to  be  posted. 

Prior  to  the  sale  of  any  real  property  for  taxes  in  any  county 
in  this  state,  the  collector  of  taxes  shall  advertise  the  same  by 
posting  a  list  of  the  names  of  the  delinquents  for  thirty  days  as 
follows:  One  copy  at  the  courthouse  door  of  the  county,  and  a 
copy  at  two  other  public  places  in  the  county  where  the  lands  or 
lots  are  situated.    Sayles  R.  S.,  Art.  5181. 

§  268.     Sale  of  real  estate  may  be  continued  from  day  to  day. 

As  far  as  may  be  practicable  all  the  lands  and  town  lots  levied 
upon  for  taxes  shall  be  advertised  in  one  notice  and  be  sold  on 
the  same  day ;  and  such  sales  may  be  continued  from  day  to  day 
until  concluded,  but  at  the  close  of  each  day's  sale  the  collector 
■  of  taxes  shall  make  proclamation  of  such  continuance  on  the  fol- 
lowing day.  No  sale  shall  be  considered  complete  until  the  pay- 
rrHent  of  the  purchase  money,  and  if  the  same  is  not  paid  before 
the  completion  of  the  tax  sales,  the  collector  shall  resell  the 
property,  and  continue  such  sale  until  the  same  is  complete. 
(Acts  1876,  p.  289.)    Sayles  R.  S.,  Art.  5182. 

§  269.     Sales  of  land,  how  made. 

The  collector  of  taxes,  in  making  sales  for  taxes  due  upon 
real  estate,  shall  sell  at  auction  at  the  time  and  place  appointed 
so  much  of  said  real  estate  as  may  be  necessary  to  pay  the  taxes 
and  penalties  due  and  all  costs  accruing  thereon,  and  shall  offer 
said  real  estate  to  the  bidder  who  will  pay  the  taxes  and  penal- 
ties due,  and  costs  of  sale  and  execution  of  deed  for  the  least 
amount  of  said  real  estate,  who  shall  be  deemed  the  highest  bid- 
der. Should  a  less  amount  of  said  real  estate  than  the  whole  tract 
or  parcel  of  said  real  estate  levied  upon  be  sold  for  the  taxes 
and  penalties  due  and  all  costs  of  sale  and  execution  and  (of?) 
deed,  the  collector  shall,  in  making  his  deed  to  the  purchaser,  be- 
gin at  some  corner  of  said  tract  or  parcel  of  land  or  town  lot 
and  designate  the  same  in  a  square  as  near  as  practicable.  Sayles 
R.  S.,  Art.  5184. 

§  270.     The  tax  deed  and  its  requisites. 

The  collector  of  taxes  shall  execute  and  deliver  to  the  pur- 
chaser, upon  the  payment  of  the  amount  for  which  the  estate  was 
sold,  and  costs  and  penalties,  a  deed  for  the  real  estate  sold,  which 
deed  shall  vest  a  good  and  perfect  title  to  said  land  in  the  pur- 


192  Taxation  in  Texas. 

chaser,  if  not  redeemed  in  two  years,  as  hereinafter  provided; 
which  deed  shall  state  the  cause  of  sale,  the  amount  sold,  the  price 
for  which  the  real  estate  was  sold,  the  name  of  the  person,  firm, 
company  or  corporation  on  whom  the  demand  for  taxes  was 
made;  provided,  the  name  is  known,  and  if  unknown  say  "un- 
known," the  same  description  of  the  land  as  is  given  in  the  tax 
rolls,  and  such  other  description  as  may  be  practicable  for  better 
identification ;  and  when  real  estate  has  been  sold  he  shall  convey, 
subject  to  the  right  of  redemption  provided  for  in  Article  '5187, 
all  the  right  and  interest  which  the  former  owner  had  therein  at 
the  time  when  the  assessment  was  made.    Sayles  R.  S.,  Art.  5185. 

The  declaration  in  the  twenty-fifth,  section  of  the  tax  law  of 
1840  (Hart.  Dig.,  Art.  3087),  that  the  tax  deed  should  be  good 
and  effectual  both  in  law  and  equity,  must  be  regarded  as  giving 
no  special  sanction  to  the  conveyance,  beyond  that  derived  from 
the  general  principles  of  the  law.  (But  quere,  if  the  doctrine  had 
not  been  firmly  established.)  And  hence,  notwithstanding  that 
provision,  it  is  necessary  for  the  plaintiff,  claiming  under  a  tax 
sale  made  by  virtue  of  that  law,  to  allege  and  prove  that  all 
the  prerequisites  were  performed.  Hadley  v.  Tankersley,  8  Tex. 
12. 

Construing  the  Act  of  March  20,  1848  (Hart.  Dig.,  Art.  3145), 
which  provided  that  a  tax  collector's  deed,  "when  recorded  ac- 
cording to  law,  shall  be  prima  facie  evidence  that  all  the  requi- 
sites of  the  law  have  been  complied  with  in  making  such  sale," 
held  that  such  deed  was  not  thereby  made  evidence  of  a  compli- 
ance with  the  prerequisites  to  the  acquisition  and  exercise  of  the 
power  to  sell.  The  statute  applied  only  to  the  proceedings  to  be 
had  after  the  right  and  power  to  sell  were  acquired.  Citing  De- 
vine  V.  McCulloch,  15  Tex.  491 ;  Kelly  v.  Medlin,  26  Tex.  56,  and 
other  cases.    Terrell  v.  Martin,  64  Tex.  121. 

Where  a  tax  deed  was  admitted  in  evidence  without  objection, 
without  evidence  of  the  facts  necessary  to  give  the  assessor  and 
collector  power  to  sell,  and  the  court  charged  the  jury  that  the 
tax  deed  was  prima  facie  evidence  that  all  the  requirements  of 
the  law  had  been  complied  with,  but  the  jury  found  against  such 
title,  under  the  charge  of  the  court  on  another  point,  a  question 
being  made  in  this  court  whether  the  finding  on  such  other  point 
could  be  sustained,  the  court  said  it  was  not  necessary  to  decide 
the  question,  because  the  party  did  not  prove  the  facts  necessary 


Summary  Sale  of  Property  for  Taxes.  193 

to  give  the  assessor  and  collector  power  to  sell,  and  affirmed  the 
judgment.    Devine  v.  McCulloch,  15  Tex.  488. 

The  power  of  the  officer  to  sell  land  for  the  non-payment  of 
taxes  is  a  naked  power,  not  coupled  with  an  interest ;  and  in  all 
such  cases  the  law  requires  that  every  prerequisite  to  the  exercise 
of  that  power  must  precede  its  exercise ;  that  the  agent  must  pur- 
sue the  power  or  his  act  will  not  be  sustained  by  it.  Yenda  v. 
Wheeler,  9  Tex.  408. 

A  tax  deed  is  of  itself  no  evidence  of  title  in  the  purchaser  at  a 
tax  sale.  Pratt  v.  Jones,  64  Tex.  694 ;  Damson  v.  Ward,  7\  Tex. 
72,  9  S.  W.  106.  A  legal  assessment,  advertisement  and  tax  sale 
of  land  must  be  clearly  shown  before  any  rights  can  be  acquired 
under  a  tax  title.  Railumy  Co.  v.  Poindexter,  70  Tex.  98,  7  S.  W. 
316. 

A  collector's  deed  to  property  subject  to  taxation  and  sold  in 
accordance  with  law,  vests  a  good  and  perfect  title,  which  can 
only  be  impeached  for  actual  fraud.  Such  a  deed  would  there- 
fore constitute  a  cloud  upon  the  title  regularly  sold,  but  not  liable 
for  the  tax,  to  prevent  or  remove  which  equity  may  be  invoked. 
Cassiano  v.  Ursuline  Academy,  64  Tex.  67 Z. 

It  is  settled  that  tax  titles,  when  in  every  respect  complete,  may 
constitute  perfect  assurances  of  title;  they  may  constitute  the 
basis  of  good  title  under  the  statute  of  limitations  independent  of 
any  judicial  determination  as  to  their  validity ;  and  under  certain 
circumstances  they  are  to  be  deemed  colorable  titles.  Though 
invalid,  a  tax  title  is  not  necessarily  without  meritorious  consid- 
eration if  the  owner  had  reasonable  grounds  for  believing  that 
his  title  was  good.  Hatchett  v.  Conner,  30  Tex.  104;  House  v. 
Stone,  64  Tex.  677. 

When  a  tax  deed  gives  what  on  its  face  appears  to  be  a  suffi- 
cient description  of  the  land  conveyed,  and  there  is  no  evidence  de- 
veloping any  latent  uncertainty,  the  authorities  do  not  decide  that 
such  deed  does  not  satisfy  the  statute  of  limitations.  Flanagan 
V.  Boggess,  46  Tex.  331. 

A  patent  ambiguity  in  description  of  the  land  in  a  tax  deed  ren- 
ders it  void.    Crumbley  v.  Busse,  32  S.  W.  438. 

Tax  deeds,  void  upon  their  face  for  want  of  certainty  and 

falsity  of  description  of  the  land  claimed,  are  not  to  be  deemed 

deeds  duly  registered,  and  will  not  support  the  plea  of  the  statute 

of  limitations  of  five  years.     Nor  are  they  evidence  of  title  or 

13 


194  Taxation  in  Texas. 

color  of  title  to  sustain  the  plea  of  possession  for  three  years, 
etc.  Kilpatrick  v.  Sisneros,  23  Tex.  113;  Wofford  v.  McKenna, 
23  Tex.  36. 

A  conveyance  by  a  tax  collector  or  sheriff  of  a  number  of  acres 
to  be  taken  out  of  a  larger  survey  is  void  for  uncertainty.  Mor- 
gm  V.  Smith,  70  Tex.  637,  8  S.  W.  528. 

A  deed  purporting  to  convey  land  which  describes  it  only  by 
quantity,  and  as  being  part  of  a  larger  tract,  with  nothing  where- 
by to  identify  what  specific  portion  of  the  larger  tract  is  intended 
to  be  conveyed,  is  void  for  uncertainty  of  description  of  tax 
title.    Lumber  Company  v.  Hancock,  70  Tex.  312,  7  S.  W.  724. 

To  be  of  any  force  a  tax  title  must  be  proved  to  be  the  con- 
summation of  a  valid  sale.  State  taxes  are  levied  by  general  law 
and  are  not  required  to  be  proved ;  county  taxes  are  levied  by  the 
commissioners'  court,  and  the  levy  must  be  proved  or  the  sale 
will  not  appear  to  have  been  made  for  a  legal  demand.  Citing 
Blackwell,  p.  155.    Greer  v.  Howell,  64  Tex.  688. 

Even  after  the  lapse  of  forty  years,  no  presumption  will  be 
indulged  that  the  laws  regulating  the  assessment  and  sale  of  land 
for  taxes  have  been  complied  with  so  as  to  supply  the  missing  evi- 
dence of  power  in  the  officer  to  make  the  sale.  Telfener  v.  Dil- 
lard,  70  Tex.  139,  7  S.  W.  847. 

One  claiming  land  under  a  tax  sale  made  under  the  Act  of  1840 
(Early  Laws,  Art.  711)  must  aver  and  prove  compliance  on  the 
part  of  the  officer  who  executed  the  deed  with  all  the  essential 
requisites  of  the  law  for  a  valid  tax  sale. 

The  petition  alleged  the  existence  of  a  void  tax  sale  and  that 
it  was  a  cloud  upon  plaintiff's  title.  On  the  trial  a  tax  deed  for 
the  land  was  produced,  and  there  was  no  testimony  to  any  fact 
upon  which  the  legality  of  the  tax  sale  could  be  based.  Held,  that 
it  did  not  devolve  upon  the  plaintiff  to  further  show  the  invalid- 
ity of  the  tax  deed.  It  being  void,  no  testimony  was  required 
to  authorize  the  court  to  treat  it  as  invalid.  Dawson  v.  Ward, 
71  Tex.  72,  9  S.  W.  106. 

Ordinarily  it  is  requisite  to  the  validity  of  a  tax  sale  that  the 
property  sold  shall  have  been  described  when  listed  for  taxation 
by  the  number  of  the  certificate  under  which  it  was  surveyed. 
Henderson  v.  White,  69  Tex.  103,  5  S.  W.  374;  McCormick  v. 
Edwards,  69  Tex.  106,  6  S.  W.  32. 

A  tax  deed  was  attacked  upon  the  following  among  other 
grounds:   1.  The  tax  rolls  failed  to  show  the  number  of  the  cer- 


Summary  Sale  of  Property  for  Taxes.  195 

tificate  by  virtue  of  which  the  land  was  located.  2.  The  notice 
of  sale  fails  to  show  when  the  land  would  be  sold.  3.  The  deed 
made  by  the  collector  describes  the  land  sold  for  taxes  as  being 
one  hundred  and  sixty  acres,  patented  to  Jeremiah  Heath,  as- 
signee of  Benjamin  F.  Berry,  describing  it  by  metes  and  bounds 
and  excepting  out  of  said  tract  eighty  acres  on  which  the  taxes 
were  paid  by  H.  F.  Heath.  These  objections  are  well  taken. 
Henderson  v.  White,  69  Tex.  103,  5  S.  W.  374. 

Where  the  tax  deed  assumes  to  convey  the  title  of  the  unknown 
owner,  without  reference  to  the  derivation  of  title  or  to  the  per- 
son under  whom  he  claimed,  and  the  proceedings  have  been  oth- 
erwise regular  it  may  be  effectual;  but  where  the  owner  under- 
takes to  convey  a  particular  title,  the  purchaser  takes  the  title  so 
conveyed ;  none  other  will  pass  by  the  deed.  Yenda  v.  Wheeler, 
9  Tex.  408;  Wheeler  v.  Yenda,  11  Tex.  562, 

A  falsity  which  might  probably  mislead  the  owner,  in  the  des- 
ignation or  description  in  the  assessment  of  lands  not  rendered 
for  taxation,  runs  through  and  invalidates  all  subsequent  pro- 
ceedings.   Yenda  v.  Wheeler,  9  Tex.  408. 

Where  a  tax  law  requires  copies  of  the  assessment  roll  to  be 
pos1;ed  at  certain  places,  a  failure  on  the  part  of  the  assessor  or 
collector  to  post  the  copies  as  required  will  invalidate  the  tax 
sale.    Yenda  v.  Wheeler,  9  Tex.  408. 

An  action  of  trespass  to  try  title  to  certain  lots  bought  at  a 
sale  for  taxes  due  on  them  was  against  persons  holding  them 
under  claim  of  right.  The  defendants  pleaded  the  ten  years  stat- 
ute of  limitation.  Held:  (1)  That  if  the  tax  deed  was  vaUd, 
and  any  title  passed,  it  was  only  such  as  the  real  owner  of  the 
land  had  at  the  time  of  sale.  (2)  That  such  a  person  stands  in 
relation  to  persons  in  possession  under  claim  of  right,  but  with 
no  title,  just  as  the  real  owner  would  stand  had  there  been  no 
sale.  (3)  That  if  there  had  been  no  tax  sale,  and  the  suit  had 
been  instituted  by  the  real  owner  at  the  time  it  was,  if  his  right 
of  action  would  have  been  barred  by  the  statute  of  limitation, 
so  would  that  of  the  purchaser  at  tax  sale  or  those  holding  under 
him.    Jordan  v.  Higgins,  63  Tex.  150. 

One  claiming  under  an  invalid  tax  title,  not  void  on  its  face, 
is  entitled  to  adduce  evidence  as  to  improvements  under  his  sug- 
gestion of  good  faith  and  to  have  that  issue  determined.  French 
V,  Grenet,  57  Tex.  273,  and  Wofford  v.  McKinna,  23  Tex.  36, 


196  Taxation  in  Texas. 

approved,  and  Robson  v.  O shorn,  13  Tex.  298,  questioned, 
Hatchett  v.  Conner,  30  Tex.  104;  House  v.  Stone,  64  Tex.  677. 

Whether  a  purchaser  of  land  at  tax  sale  whose  title  is  invalid 
but  who  neither  knew,  nor  by  proper  diligence  could  have  known, 
when  he  purchased,  the  invalidity  of  his  deed,  is  entitled  to  have 
refunded  to  him  taxes  which  were  a  charge  upon  the  land  before 
the  entering  of  a  decree  canceling  the  tax  deed,  quaere.  Stewart 
V.  Kemp,  54  Tex.  248. 

If  a  tax  deed  shows  upon  its  face  that  it  is  void,  it  can  not  be 
the  foundation  for  a  claim  for  the  value  of  improvements  made 
in  good  faith.  Hatchett  v.  Conner,  30  Tex.  104;  House  v.  Stone, 
64  Tex.  677. 

§  271.     Sales  to  be  reported  to  the  commissioners'  court. 

When  the  collector  of  taxes  shall  have  made  sale  of  any  real 
estate  under  this  chapter,  it  shall  be  his  duty  to  make  immediate 
return  of  said  sale  to  the  commissioners'  court,  stating  in  said 
return  the  land  sold,  the  name  of  the  owner,  if  known,  and  if  un- 
known state  the  fact,  the  time  of  the  sale,  the  amount  for  which 
said  sale  was  made,  together  with  the  name  of  the,  purchaser, 
which  return  shall  be  entered  of  record  on  the  minute  books  of 
said  court.     Sayles  R.  S.,  Art.  5186. 

§  272.     Redemption  of  land  sold  for  taxes. 

The  owner  of  land  sold  for  the  payment  of  taxes,  or  his  heirs 
or  assigns  or  legal  representatives,  may,  within  two  years  from 
the  date  of  sale,  redeem  the  estate  sold  by  paying  or  tendering 
to  the  purchaser,  his  heirs  or  legal  representative,  double  the 
amount  of  money  paid  for  the  land.    Sayles  R.  S.,  Art.  5187. 

A  tender  to  the  purchaser  at  tax  sale,  under  the  third  section 
of  the  act  of  June  2,  1873  (13th  Leg.,  p.  187),  concerning  taxes, 
which  is  similar  in  terms  to  this  article,  the  full  amount  of  the 
purchase  money  paid  for  land  at  such  sale,  within  twelve  months, 
with  one  year's  interest  on  the  same,  at  the  rate  of  twenty-five 
per  cent  per  annum,  worked  ipso  facto  an  immediate  redemption 
of  the  land  by  the  original  owner,  and  left  the  purchaser  at  tax 
sale  without  title.    Burns  v.  Ledhetter,  54  Tex.  374. 

§  273.     Redemption  from  private  purchasers. 

Any  person  having  the  right  to  redeem  any  land  sold  at  tax 
sale  may  do  so  by  payment,  within  the  time  prescribed  by  law, 


Summary  Sale  of  Property  for  Taxes.  197 

to  the  collector  of  taxes  of  the  county  in  which  the  said  land  was 
sold,  of  the  amount  which  the  law  requires  to  be  paid ;  provided, 
that  the  owner  of  said  land,  or  his  agent,  shall  first  have  made 
affidavit  before  some  officer  authorized  by  law  to  administer 
oaths,  that  he  has  made  diligent  search  in  the  county  where  said 
land  is  situated  for  the  purchaser  thereof  at  the  tax  sale,  and  has 
failed  to  find  him ;  or  that  the  purchaser  at  such  tax  sale  is  not  a 
resident  of  the  county  in  which  the  land  is  situated,  or  that  he  and 
the  purchaser  can  not  agree  on  the  amount  of  redemption  money. 
In  such  cases  only  shall  the  owner  or  agent  be  authorized  to  re- 
deem the  same  by  the  payment  to  the  collector  of  taxes.  (Acts 
1879,  S.  S.,  p.  29).    Sayles  R.  S.,  Art.  5188. 

§  274.     Receipt  of  collector's  notice,  when. 

It  shall  be  the  duty  of  any  collector  of  taxes,  to  whom  payment 
is  made  under  the  provisions  of  this  chapter,  to  give  a  receipt 
therefor,  signed  by  him  officially,  in  the  presence  of  two  wit- 
nesses, which  said  receipt,  when  duly  recorded,  shall  be  notice 
to  all  persons  that  the  land  therein  described  has  been  redeemed ; 
and  the  collector  of  taxes  shall,  on  demand,  pay  over  to  the  pur- 
chaser at  said  tax  sale  the  money  thus  received  by  himi.  Sayles 
R.  S.,  Art.  5189. 

§  275.     Relief,  when. 

Any  person  whose  land  has  been  rendered  for  taxation,  wheth- 
er the  same  was  rendered  in  the  name  of  the  original  grantee 
or  not,  and  has  also  been  placed  upon  the  unrendered  rolls  for 
the  same  year,  shall  be  entitled  to  relief  upon  complying  with  the 
requirements  hereinafter  indicated.     Sayles  R.  S.,  Art.  5190. 

If  any  such  lands  shall  have  been  sold  for  the  taxes  charged 
upon  the  unrendered  rolls,  and  bought  by  the  state,  the  owner 
thereof,  his -agent  or  attorney,  shall  present  to  the  tax  collector 
of  the  county  in  which  the  land  is  situated  a  sworn  statement 
to  the  effect  that  the  same  land  has  been  rendered  for  taxation, 
and  placed  upon  the  regular  assessment  rolls  for  the  year  men- 
tioned. Said  affidavit  shall  contain  an  accurate  description  of  the 
land,  and  be  accompanied  with  the  certificate  of  the  assessor  that 
the  same  is  true  and  correct ;  and  the  tax  collector  shall  thereupon 
present  such  person  with  a  written  statement,  officially  signed, 
that  said  tax  has  been  canceled,  and  make  a  note  of  the  same 
upon  the  unrendered  rolls,  provided,  the  provisions  of  this  article 


198  Taxation  in  Texas. 

shall  apply  to  such  lands  at  any  time  after  the  collector  shall  re- 
ceive the  rolls  until  the  same  shall  have  gone  into  the  hands  of 
a  private  purchaser;  and  if  the  owner  shall  have  paid  the  taxes 
charged  upon  the  unrendered  rolls  at  any  time  previous  he  shall 
be  entitled  to  the  warrant  of  the  comptroller  for  the  amount  so 
paid,  in  the  same  manner  as  is  provided  in  Article  5192  of  this 
chapter,  in  cases  of  redemption  from  individual  purchasers;  pro- 
vided further  that  the  tax  collector  shall  make  no  charge  whatever 
for  the  duties  herein  mentioned.  (Acts  1881,  p.  107,  Sec.  2.) 
Sayles  R.  S.,  Art.  5191. 

§  276.     Certificate  of  redemption  from  collector. 

When  the  owner  of  such  lands  shall  have  redeemed  the  same 
from  a  private  purchaser,  it  shall  be  the  duty  of  the  tax  collector 
to  furnish  him  a  certificate  to  that  effect;  and  upon  presentment 
of  said  certificate  to  the  comptroller,  the  comptroller  shall  issue 
to  him  a  warrant  upon  the  treasury  of  the  state  for  the  amount 
of  such  tax.  This  warrant  shall  be  receivable  for  all  taxes  to 
the  state.  For  issuing  the  certificate  provided  for  in  this  article 
the  tax  collector  shall  be  allowed  the  sum  of  fifty  cents,  to  be 
paid  by  the  applicant.    Sayles  R.  S.,  Art.  5192. 

§  277.     Lands  to  be  bid  in  for  state,  when. 

Should  the  collector  of  taxes  fail  to  make  sale  of  any  real 
estate  for  want  of  a  purchaser,  he  shall  bid  the  same  off  for  the 
state  for  the  taxes  and  penalties  due  and  all  costs  accruing 
thereon  and  execute  a  deed  to  the  state ;  and  one  deed  shall  in- 
clude all  tracts  of  land  bid  off  to  the  state  at  such  tax  sale,  and 
make  due  return  thereof,  under  such  forms  and  directions  as  the 
comptroller  may  furnish  and  direct;  and  after  sale  and  purchase 
by  the  state  of  any  real  estate  it  shall  not  be  lawful  for  said  col- 
lector to  levy  upon  or  advertise  or  sell  the  same  for  any  remain- 
ing or  accrued  taxes  due  thereon  until  the  same  shall  have  been 
redeemed  by  the  owner  or  is  sold  by  the  state.  Said  collector 
shall,  on  final  settlement  of  his  accounts  with  the  commissioners' 
court  and  the  comptroller  of  public  accounts,  be  entitled  to  a 
credit  for  the  amount  of  taxes  due  the  state  and  county,  respec- 
tively, for  which  the  land  and  lots  were  bid  off  to  the  state.  Sayles 
R.  S.,  Art.  5193. 


Summary  Sale  of  Property  for  Taxes.  199 

§  278.     May  redeem,  how. 

The  owner,  or  his  agent,  of  any  lands  that  may  have  been 
conveyed  to  the  state  under  the  provisions  of  the  foregoing  arti- 
cle, desiring  to  redeem  the  same,  may  do  so  by  depositing  with 
the  collector  of  the  county  in  which  the  lands  were  sold  double 
the  amount  of  the  purchase  money  and  all  accrued  taxes  thereon, 
within  two  years  from  the  date  of  the  deed  to  the  state,  and  it 
shall  be  the  duty  of  such  collector  to  execute  a  receipt  to  such 
owner  or  agents,  giving  therein  the  amount  of  the  money  re- 
ceived, and  a  description  of  the  land  so  as  to  identify  the  same, 
and  sign  and  seal  the  same  officially,  and  upon  presentation  of 
such  receipt  to  the  comptroller  of  public  accounts,  he  shall  exe- 
cute to  the  owner  a  relinquishment  under  his  signature  and  seal 
of  office,  which  may  be  admitted  to  record  in  like  manner  with 
other  conveyances  of  land.    Sayles  R.  S.,  Art.  5194. 

§  279.     If  not  redeemed. 

In  case  said  land  shall  not  have  been  redeemed  as  provided  in 
Article  5194,  then  the  same  may  be  sold  as  provided  by  Article 
5193. 

§  280.     May  redeem  in  what  manner. 

The  owner  of  real  estate  which  has  been  bought  in  by  the  state 
for  taxes,  his  heirs  or  assigns,  may  redeem  the  same  at  any  time 
prior  to  the  sale  thereof,  by  the  payment  to  the  collector  of  the 
county  in  which  such  real  estate  is  situated,  or  to  the  comptroller, 
if  in  an  unorganized  county,  of  the  amount  designated  by  the 
comptroller  as  due  thereon  with  costs  of  advertisement ;  and  pro- 
vided further,  that  if  it  shall  at  any  time  appear  to  the  satisfac- 
tion of  the  comptroller  that  any  land  has  been  sold  to  the  state 
for  taxes  which  have  been  paid,  or  that  the  sale  has  not  been 
made  in  accordance  with  the  law  authorizing  the  sale  of  the  land 
for  taxes,  he  shall,  upon  the  payment  of  the  amount  that  may  be 
due  thereon,  cancel  such  sale,  and  in  all  cases  he  shall  deliver  to 
the  owner  of  the  land  or  his  agent,  a  certificate  under  seal  of  his 
department,  setting  forth  the  fact  that  such  land  has  been  re- 
deemed or  that  such  sale  has  been  canceled,  which  certificate  shall 
release  the  interest  of  the  state,  and  the  same  may  be  recorded 
in  the  proper  county  as  other  conveyances  of  real  estate  are  re- 
corded.   Sayles  R.  S.,  Art.  5196. 


200  Taxation  in  Texas. 

§  281.  Commissioners'  board  to  sit  as  a  board  of  inquiry, 
when. 
The  commissioners'  courts  of  the  several  counties  in  this  state 
shall,  at  the  regular  terms  of  said  courts,  sit  as  a  court  of  inquiry 
in  cases  where  land  has  been  erroneously  rendered  for  taxes; 
and  any  land  owner  whose  land  has  been  or  may  be  sold  to  the 
state  for  taxes  may  appear  before  said  court  in  person  or  by  proxy 
and  show  to  the  satisfaction  of  a  majority  of  said  court  that 
the  taxes  for  which  his  or  her  lands  have  been  sold  have  been 
paid,  although  the  same  was  rendered  in  an  incorrect  abstract 
number  or  survey,  or  original  grantee;  thereupon  said  commis- 
sioners' court  shall  issue  to  the  same  land  owner  a  certificate 
setting  forth  fully  said  facts,  which  certificate  shall  be  signed  of- 
ficially by  the  county  judge  of  said  county  and  upon  the  presenta- 
tion of  said  certificate  to  the  comptroller  of  public  accounts  he 
shall  execute  and  deliver  to  said  land  owner  a  valid  deed  relin- 
quishing all  the  right,  title  and  interest  the  state  may  have  ac- 
quired in  and  to  said  land  by  reason  of  such  tax  sale.  Sayles 
R.  S.,  Art.  5197. 

§  282.     Sale  for  taxes  due  towns  and  cities. 

The  provisions  of  this  chapter  in  reference  to  the  seizure  and 
sale  of  real  and  personal  property  for  taxes,  penalties  and  costs 
due  thereon  shall  apply  as  wjcII  to  collectors  of  taxes  for  towns 
and  cities  as  for  collectors  of  taxes  for  counties,  and  they  shall 
be  governed  in  selling  real  and  personal  property  by  the  same 
rules  and  regulations  in  all  respects  as  to  time,  place,  manner  and 
terms  and  making  deeds  as  are  provided  for  collectors  of  taxes 
for  counties.     Sayles  R.  S.,  Art.  5198. 

The  requirement  that  land  in  towns  and  cities  should  be 
sold  by  lots  is  directory,  and  does  not  limit  the  power  of  the 
court  to  order  the  sale  in  the  mode  deemed  most  conducive  to 
the  interest  of  the  parties.  Oppenheimer  v.  Reed,  32  S.  W.  325 ; 
11  Tex.  Civ.  App.  367. 

§  283.     Sheriff  to  execute  deeds. 

In  all  cases  in  which  lands  have  been  sold,  or  may  be  sold  for 
default  in  the  payment  of  taxes,  it  shall  be  lawful  for  the  sheriff 
selling  the  same,  or  any  of  his  successors  in  office,  to  make  a 
deed  or  deeds  to  the  purchaser  or  to  any  other  person  to  whom 
the  purchaser  may  direct  the  deed  to  be  made,  and  any  such  deed 


Summary  Sale  of  Property  for  Taxes.  201 

shall  be  held  in  any  court  of  law  or  equity  in  this  state  to  vest  a 
good  and  perfect  title  in  the  purchaser  thereof,  subject  to  be  im- 
peached only  for  actual  fraud.     Sayles'  R.  S.,  Art.  5232h. 

§  284.     What  must  be  proven. 

Whoever  claims  lands  under  a  sale  for  delinquent  taxes  must 
take  upon  himself  the  burden  of  proving  that  the  taxes  were 
duly  assessed,  which  were  a  charge  upon  the  land,  and 'that  the 
successive  steps  were  taken  which  led  to  a  lawful  sale  therefor, 
or  which  he  or  some  one  under  whom  he  claims  becomes  the 
purchaser.  Yenda  v.  Wheeler,  9  Tex.  417;  Robson  v.  Oshorn, 
13  Tex.  307;  Dennie  v.  McCulloch,  15  Tex.  491;  Kelly  v.  Med- 
lin,  26  Tex.  48;  McDaniel  v.  Needham,  61  Tex.  274;  Terrell  v- 
Martin,  64  Tex.  125 ;  Houston  v.  Washington,  41  S.  W.  135,  16 
Tex.  Civ.  App.  504 ;  Lombcrida  v.  Barnum-,  90  S.  W.  699. 

It  is  well  settled  in  this  state  that  a  purchaser  at  a  sale  for 
taxes,  in  which  the  requirements  of  the  law  are  not  complied 
with,  acquires  neither  title  nor  any  right  whatever  against  the 
owner  of  the  property.  Eustis  v.  City  of  Henrietta,  39  S.  W. 
569,  90  Tex.  468 ;  McCormick  v.  Edwards,  69  Tex.  106,  6  S.  W. 
32;  Railway  Co.  v.  Poindexter,  70  Tex.  103,  7  S.  W.  316. 

It  devolves  upon  a  purchaser  at  a  tax  sale  to  show  in  support 
of  his  title,  the  strictest  compliance  with  every  formality,  not 
only  in  the  levy  and  assessment  of  the  tax,  but  likewise  in  the 
form  and  manner  of  making  such  sales.  This,  however,  refers 
to  ex  parte  sales  and  not  where  the  party  has  had  his  day  in  court. 
Labadie  v.  Dean,  47  Tex.  102. 

To  be  of  any  force,  a  tax  title  must  be  proved  to  be  the  con- 
summation of  a  valid  sale.    Greer  v.  Howard,  64  Tex.  688. 

§  285.     Summary  sale  not  nullified. 

Provisions  for  collection  of  taxes  by  suit  do  not  nullify  the 
provisions  by  summary  sale  of  tax  collector.  Masterson  v.  State, 
17  T.  C.  A.  93. 

§  286.     Summary  sale  prohibited  by  Constitution  of  1869. 

Authority  to  a  city  through  its  officers  to  seize  and  sell  prop- 
erty of  which  the  taxes  have  not  been  paid,  conferred  by  an  act 
of  the  Legislature  in  1866,  was  destroyed  by  Sec.  21,  Art.  XII, 
of  the  Constitution  of  1869,  prohibiting  the  sale  of  landed  prop- 
erty for  taxes  due  thereon,  except  under  a  decree  of  some  court 
of  competent  jurisdiction.  Lockhart  v.  Mayor,  Aldermen,  etc., 
of  the  City  of  Houston,  45  Tex.  317. 


CHAPTER  XIII. 

SUIT  TO  FORECLOSE  TAX  LIENS. 

Sec.  Sec. 

287.  Suits    to    foreclose    liens    for      289.  Right  to  sue  for  taxes. 

State  and  county  taxes.  290.  Consolidation  for  suits. 

288.  The  particular  property  must      291.  Delinquent  record. 

have  been  sold  or  reported      292.  Action  in  rem. 
delinquent   before    suit   for 
tax  on  same  will  lie. 

§  287.     Suits  to  foreclose  liens  for  state  and  county  taxes. 

Twenty  days  after  the  publication  of  such  notice,  or  as  soon 
thereafter  as  practicable,  the  commissioners'  court  or  the  county 
judge  acting  for  said  court,  shall  file  a  list  of  all  lands  so  adver- 
tised for  taxes  due  for  any  year  or  number  of  years,  the  tax  on 
which  remains  unpaid,  with  the  county  clerk  of  the  county  in 
which  such  lands  are  located,  or  if  unorganized,  then  with  the 
county  clerk  of  the  county  to  which  said  unorganized  county  may 
be  attached  for  judicial  purposes,  and  are  to  be  sold  under  the 
provisions  of  this  chapter,  for  all  the  taxes,  interest,  penalty  and 
costs,  and  shall  cause  suit  to  be  filed  in  the  name  of  the  state  of 
Texas,  in  the  district  court  of  said  county,  or,  if  unorganized,  then 
in  the  district  court  of  the  county  to  which  said  unorganized 
county  is  attached  for  judicial  purposes,  stating  therein  by  apt 
reference  to  lists  or  schedules  annexed  thereto  a  description  of 
all  lands  or  lots  in  such  county  upon  which  taxes  and  penalty 
have  remained  unpaid  for  any  year  or  number  of  years  since 
the  first  day  of  January,  1885,  and  the  total  amount  of  such  taxes, 
with  interest  computed  thereon  to  the  time  fixed  for  the  sale 
thereof  at  the  rate  of  six  per  cent  per  annum,  and  shall  pray  for 
judgment  for  the  payment  of  the  several  amounts  so  specified 
therein,  and  in  default  thereof,  that  such  lands  be  sold  to  satisfy 
said  judgment  for  all  taxes,  interest,  penalty  and  costs,  and  for 
such  other  relief  to  which  the  state  may  be  entitled  under  the 
law  and  facts.  All  suits  to  enforce  the  collection  of  taxes,  as 
provided  in  this  chapter,  shall  take  precedence  and  have  priority 
over  all  other  suits  pending  in  the  district  court.  The  petition  in 
such  suits  shall  be  signed  by  the  attorney  bringing  the  suit,  and 


Suit  to  Foreclose  Tax  Liens.  203 

shall  be  verified  by  the  affidavit  of  said  attorney,  or  the  county 
judge,  to  the  effect  that  the  averments  contained  in  said 
petition  are  true  to  the  best  knowledge  and  belief  of  affiant,  and 
the  pleadings  of  the  defendant,  except  those  of  law,  shall  be  veri- 
fied by  like  affidavit  of  the  defendant,  his  agent  or  attorney.  The 
county  collector  and  county  clerk  and  county  assessor  shall  fur- 
nish all  affidavits,  certified  copies  of  the  records  of  their  respective 
offices,  and  such  other  evidences  as  may  be  in  their  possession  by 
virtue  of  such  office,  as  may  be  applied  for  by  the  county  attorney. 
Sayles'  R.  S.,  Art.  5232f. 

§  288.     The  particular  property  must  have  been  sold  or  re- 
ported delinquent  before  suit  for  tax  on  same  -will  lie. 

"Under  Acts  1895,  p.  50,  Ch.  42  (Sayles'  Rev.  Civ.  St.,  Art. 
5232a,  et  seq.),  providing  that  all  lands  or  lots  which  have  been 
returned  delinquent  or  reported  sold  to  the  state  shall  be  subject 
to  the  provisions  of  the  act  relating  to  sales  for  taxes,  and  that 
real  estate  on  which  taxes  have  been  paid  under  erroneous  de- 
scriptions in  the  assessment  rolls  or  which  have  been  doubly 
assessed  or  on  which  taxes  have  been  paid  in  a  county  other 
than  that  in  which  they  are  located  shall  not  be  deemed  subject 
to  the  provisions  of  the  act,  where  a  decree  for  tax  sale  of  an 
entire  league  referred  to  an  exhibit  in  the  petition  therefor, 
which  showed  that  in  no  one  year  had  the  entire  league  been  re- 
ported sold  for  taxes  or  delinquent,  was  void,  as  beyond  the 
jurisdiction  of  the  court."  Schaffer  v.  Davidson,  97  S.  W.  858; 
44  Tex.  Civ.  App.  100. 

§  289.     Right  to  sue  for  taxes. 

The  weight  of  authority  seems  to  be  that  when  a  statute  does 
not  provide  an  exclusive  remedy  for  the  collection,  they  may 
be  enforced  by  suit.    Cave  v.  City  of  Houston,  65  Tex.  619. 

"In  the  absence  of  any  express  provision  on  the  subject,  a  city 
has  the  power  to  bring  suit  for  taxes."  Brummer  v.  City  of 
Galveston,  76  S.  W.  429,  97  Tex.  93 ;  City  of  Henrietta  v.  Eustis, 
26  S.  W.  619,  87  Tex.  14. 

A  tax  legally  levied  and  assessed  by  a  municipal  corporation 
pursuant  to  its  charter  creates  a  legal  obligation  to  pay  such  tax, 
and  the  city  can  recover  it  by  suit,  and  this  although  there  may 
be  a  summary  mode  of  recovery  provided  by  statute.  Trust  Co. 
V.  City  of  Oak  Cliff,  8  Tex.  Civ.  App.  217;  City  of  Henrietta  v. 


204  Taxation  in  Texas. 

EusHs,  87  Tex.  14,  26  S.  W.  619;  Howard  v.  City  of  Houston, 
59  Tex.  76 ;  Cave  v.  City  of  Houston,  65  Tex.  619 ;  State  v.  Baker, 
49  Tex.  763 ;  Bordages  v.  Higgins,  20  S.  W.  726,  1  Tex.  Civ. 
App.  43 ;  Burroughs  on  Taxation,  Sec.  105 ;  Desty  on  Taxation, 
Sec.  706. 

The  mode  provided  by  statute  for  the  collection  of  taxes  will 
not  be  exclusive  of  other  methods,  unless  it  clearly  appears 
from  said  statute  that  it  was  the  intention  of  the  Legislature  to 
make  it  so.  Trust  Co.  v.  City  of  Oak  Cliff,  8  Tex.  Civ.  App.  217 ; 
Cave  V.  City  of  Houston,  65  Tex.  619 ;  2  Desty  on  Taxation,  Sec. 
706;  Bank  v.  United  States,  19  Wall  227. 

The  city  of  Austin,  under  its  charter,  may  institute  suit  for 
taxes  due  it  at  any  time  after  the  day  set  apart  by  ordinance  for 
sale  of  such  property  for  taxes.  Under  its  charter  the  city  of 
Austin  has  a  lien  against  each  lot  or  p'arcel  of  land  for  taxes  due 
thereon,  and  is  entitled  to  have  such  lien  foreclosed  by  suit. 
Nalle  V.  City  of  Austin,  42  S.  W.  780. 

The  Act  of  July  4,  1879,  prescribing  a  mode  for  the  collection 
of  state  and  county  taxes,  and  extending  its  provisions  to  taxes 
levied  by  towns  and  cities,  was  cumulative  of  the  remedy  already 
afforded  by  the  provisions  of  the  city  charter  of  the  city  of 
Houston,  granted  by  the  Legislature  on  the  21st  of  April,  1879, 
which  authorized  the  collection  of  taxes  due  the  city  by  action 
of  debt  in  any  court  having  jurisdiction.  Hoivard  v.  Mayor  of 
Houston,  59  Tex.  76. 

Enforced  by  suit  when  no  exclusive  remedy. 

The  weight  of  authority  seems  to  be  that  when  a  statute  does 
not  provide  an  exclusive  remedy  for  the  collection  of  taxes,  they 
may  be  enforced  by  suit.  Cave  v.  Mayor,  Aldermen  and  In- 
habitants of  the  City  of  Houston,  65  Tex.  619. 

§  290.     Consolidation  of  suits. 

"Where  the  owners  of  property  appeared  and  filed  answers  in 
a  suit  by  the  state  for  taxes,  the  fact  that  the  suits  were  com- 
menced against  unknown  owners,  when  the  county  records  dis- 
closed that  the  property  belonged  to  defendants,  will  not  sustain 
a  plea  in  abatement."     Watkins  v.  State,  61  S.  W.  532. 

§  291.     Delinquent  record. 

The  delinquent  tax  record  as  prepared  by  the  comptroller 
is  not  a  prerequisite  iot  proceedings  to  enforce  the  collection  of 


Suit  to  Foreclose  Tax  Liens.  205 

taxes  due  and  delinquent  after  passage  of  the  Act  of  1895,  p. 
50,  providing  in  Sec.  10  for  the  collection  of  future  delinquent 
taxes.    Master  son  v.  State,  \7  Tex.  Civ.  App.  91. 

§  292.     Action  in  rem. 

Suits  to  collect  taxes  are  proceedings  in  rem.    Cooley  on  Tax- 
ation, p.  527;  Black  on  Tax  Titles,  Sec.  167. 


CHAPTER  XIV. 

PARTIES. 

Sec.  Sec. 

293.  Parties.  303.  Cases    in    point    only    when 

294.  Present  owner  of  land  prop-  party  is  in  possession.         , 

er  party.  304.  All  persons  claiming  interest. 

295.  City  of  Houston.  305.  Action    against   State   officer, 

296.  Suit  in  name  of  city.  not  against  State. 

297.  Bondholders    necessary  par-      306.  State  necessary  party  in  ac- 

ties.  tion    to    restrain    collection 

298.  Heirs  not  necessary  parties —  of  taxes. 

When.  307.  State  officers  right  lo  sue. 

299.  Husband  necessary  party.  308.  One    in   possession   must   be 

300.  County  taxes  delinquent  col-  party. 

lectible  by  State.  309.  Estate  as  defendant. 

301.  Unknown  owners,  are  not  un-      310.  State  and  county  not  neces- 

known  where  title  is  of  rec-  sary  parties — ^When. 

ord  and  residence  shown.  311.  Sale  before  death. 

302.  Lien  holders.  312.  Community  or  separate  prop- 

erty. 

§  293.     Parties. 

The  proper  persons  shall  be  made  parties  defendant  in  such 
suits  and  shall  be  served  with  process,  and  the  other  proceed- 
ings had  therein  as  provided  by  law  for  suits  of  like  character 
in  the  district  courts  of  this  state.    Sayles'  R.  S.,  Art.  5232g. 

§  294.     Present  owner  of  land  proper  party. 

Taxes  are  made  a  lien  upon  the  property  against  which  they 
are  assessed,  and  the  property,  not  the  owner  of  it  at  the  time  the 
taxes  are  laid,  is  liable  for  the  payment  thereof,  although  the  law 
may  provide  for  the  personal  liability  of  the  owner.  The  act 
of  the  Legislature  under  which  this  suit  is  brought  does  not 
authorize  a  personal  judgment  against  the  owner  for  the  taxes 
due  upon  the  land.  So  the  provision  that  the  "proper  persons 
shall  be  made  parties  defendant  in  such  suits,  and  shall  be 
served  with  process,  and  other  proceedings  had  therein  as  pro- 
vided by  law  for  suits  of  like  character  in  the  district  courts  of 
this  state,"  is  fully  met  with  respect  to  parties  by  making  the 
present  owner  of  the  land  sole  defendant  to  a  suit  for  the  fore- 


Parties.  207 

closure  of  the  lien  for  taxes;  and  the  law  does  not  contemplate 
a  foreclosure  against  every  person  who  may  have  been  con- 
nected with  the  title  at  any  time  during  the  period  covered  by 
the  delinquent  taxes.  It  is  clear  from  a  reading  of  the  act  that 
only  the  owner  or  person  claiming  the  land  at  the  time  the  suit 
is  brought  should  be  a  party  defendant.  League  v.  State,  56  S. 
W.  263,  93  Tex.  553. 

Where  the  owner  of  land  is  in  actual  occupation  thereof 
through  agents  or  tenants,  and  his  title  is  of  record,  he  is  a 
necessary  party  to  the  suit  for  taxes,  and  a  suit  against  all  per- , 
sons  owning  or  having  or  claiming  any  interest  in  the  lands  is 
without  effect  against  the  owner.  Bingham  et  al.  v.  Matthews, 
86  S.  W.  781,  39  Tex.  Civ.  App.  41;  Hollywood  v.  Wellhausen, 
68  S.  W.  329,  4  Tex.  965 ;  Pearson  v.  Branch,  87  S.  W.  222 ; 
Green  v.  Robertson,  70  S.  W.  345,  30  Tex.  Civ.  App.  236. 

§  295.     City  of  Houston. 

The  City  of  Houston  is  the  party  beneficially  interested  in  the 
collection  of  the  taxes  sued  for,  and  its  charter  does  not  require 
the  suits  to  be  in  the  name  of  the  assessor  and  collector,  and 
suit  is  properly  brought  in  the  name  of  the  City  of  Houston. 
Lockhart  v.  City  of  Houston,  45  Tex.  322. 

§  296.     Suit  in  name  of  city. 

"Unless  there  is  express  direction  in  the  charter  or  ordinances 
of  a.  city  that  suits  for  unpaid  taxes  shall  be  brought  in  a  par- 
ticular manner,  the  assessor  and  collector  may  institute  such 
suits  in  the  name  of  the  city."  Robert  Lockhart  v.  Mayor,  Alder- 
men, etc.,  of  the  City  of  Houston,  45  Tex.  317. 

§  297.     Bondholders  necessary  parties. 

"In  a  suit  by  taxpayers. of  a  county,  to  annul  proceedings  of 
the  county  court  authorizing  the  issuance  of  bonds  of  the  county, 
and  to  enjoin  the  collection  of  taxes  to  pay  interest  on  such  bonds, 
the  bondholders  are  necessary  parties."  T.  V.  Board  v.  Texas  & 
Pacific  R.  W.  Co.  et  al,  46  Tex.  317. 

§  298.     Heirs  not  necessary  parties — When. 

"The  heirs  are  not  necessary  parties  to  an  action  to  cancel 
a  tax  deed  by  the  executor  and  sole  devisee,  in  which  defendant 
files  a  plea  in  reconvention  in  the  nature  of  a  cross-action  of 
trespass  to  try  title;  Rev.  St.  Tex.,  Art.  1202,  providing  that  in 


208  Taxation  in  Texas. 

suits  against  a  decedent's  estate,  involving  title  to  realty,  the 
administrator  and  heirs  shall  be  made  parties  defendant."  Luf- 
kin  V.  City  of  Galveston,  11  S.  W.  340,  7Z  Tex.  340. 

§  299.     Husband  necessary  party. 

In  a  suit  against  a  married  woman  for  taxes,  her  husband  is 
a  necessary  party  defendant,  when  property  is  not  community 
nor  homestead,  but  separate  property  of  the  wife.  Crosby  v. 
Terry,  91  S.  W.  652,  41  Tex.  Civ.  App.  594. 

§  300.     County  taxes  delinquent  collectible  by  state. 

Delinquent  tax  due  the  county,  as  well  as  those  due  the  state, 
may  be  recovered  in  an  action  by  the  state.  Masterson  v.  State, 
17  Tex.  Civ.  App.  93 ;  Sayles'  R.  S.,  Art.  5232f. 

§  301.  Unknown  owners — Are  not  unknown  where  title  is  of 
record  and  residence  shown. 
"In  suing  unknown  owners,  different  procedure  in  some  re- 
spects is  prescribed  from  that  necessary  where  the  suit  is  against 
a  known  owner,  or  against  the  unknown  heirs  of  a  named  per- 
son. It  is  made  the  duty  of  the  county  collector,  county  clerk, 
and  county  assessor  to  furnish  the  county  attorney  on  his, appli- 
cation 'all  affidavits,  certified  copies  of  the  records  of  their  re- 
spective offices,  and  such  other  evidence  as  may  be  in  their  pos- 
session by  virtue  of  such  office.'  Vide  Sec.  6.  It  is  further  ex- 
pressly provided  in  Sec.  15  that:  'Wherever  the  owner  or  own- 
ers of  any  lands  or  lots  returned  delinquent  or  reported  sold 
to  the  state,  or  that  may  hereafter  be  reported  sold  or  returned 
delinquent  for  the  taxes  due  thereon  for  any  year  or  number  of 
years,  are  nonresidents  of  the  state,  or  the  name  of  the  owner 
or  owners  of  said  land  or  lots  be  unknown,  then,  upon 
affidavit  setting  out  that  the  owner  or  owners  are  non- 
residents, or  that  the  owner  or  owners  are  unknown  to  the 
attorney  for  the  state  and  after  inquiry  cannot  be  ascertained, 
said  parties  shall  be  cited  and  made  parties  defendant  by  notice' 
as  prescribed  in  the  act.  In  such  event  only  does  this  act  author- 
ize suits  against  the  unknown  owner.  With  the  sources  of  infor- 
mation available  to  the  county  attorney  to  which  we  have  re- 
ferred, how  can  it  be  said  that  the  owner  of  land  with  a  com- 
plete chain  of  title  of  record  is  unknown?  We  think 
that  it  should  be  held  that  an  'unknown  owner'  within  the  mean- 


Parties.  3Q9 

ing  of  the  act  under  consideration  is  one  not  known  to  the  coujfty 
attorney,  and  who  cannot  be  ascertained  by  the  inquiry  pre- 
scribed by  the  statute. 

"It  is  undoubtedly  true,  as  we  recognized  in  the  Gibbs  case, 
that  in  a  collateral  attack  upon  a  judgment  its  validity  is  not 
subject  to  question  by  reason  of  facts  dehors  the  record.     See 
Crawford  v.  McDonald,  88  Tex.  626,  33  S.  W.  325 ;  Kenson 
V.  Gage,  34  Tex.  Civ.  App.  547,  79  S.  W.  605 ;  Scudder  v.  Cox, 
35  Tex.  Civ.  App.  416,  80  S.  W.  872.     The  rule,  however,  ex- 
cluding extrinsic  evidence  to  impeach  a  judgment,  has  no  appli- 
cation, we  apprehend,  where  the  effort  is  to  show  that  one  was 
not  a  party.    Such  evidence  is  not  in  contradiction  of  the  record. 
It  goes  merely  to  the  question  of  the  identity  of  the  parties.    As 
illustrating  the  thought   in  mind,   see   Freeman  on  Judgments 
(4th  ed.).  Sec.  175;  Bollinger  v.  Chotcteau,  20  Mo.  89;  Crosley 
V.  Hutton,  98  Mo.  196,  11  S.  W.  613;  Palmer  v.  Hayes,  112  Ind. 
290,  13  N.  E.  882.     The  facts,  therefore,  relating  to  the  record 
of  appellant's  title  that  we  have  recited  are  to  be  construed,  we 
think,  as  in  legal  effect  placing  appellant  outside  the  class  of 
persons  upon  whom  the  judgment  could  operate,  rather  than  as 
constituting  an  attack  upon  the  judgment  itself.    In  other  words, 
if  appellant  was  not  an  'unknown  owner'  within  the  meaning  of 
the  law,  then  he  was  not  bound  by  the  judgment  because  not  a 
party  thereto.     It  is  in  such  sense  only,  it  seems  to  us,  that  the 
cases  of  Bingham  v.  Mattheias,  39  Tex.  Civ.  App.  41,  86  S.  W. 
781,  and  Sellars  v.  Simpson  (Tex.  Civ.  App.),  115  S.  W.  888, 
can  be  justified.     It  was  held  in  these  cases  that  an  owner  of 
land  in  actual  possession  was  not  bound  by  a  judgment  of  fore- 
closure and  sale  for  taxes  against  an  unknown  owner.     In  the 
last  case  cited  a  writ  of  error  was  refused,  thus  indicating  an 
approval  of  the  holdings  by  our  Supreme  Court.     In  principle 
we  do  not  see  any  sufficient  reason  why  these  cases  are  not 
applicable  here.    The  fact  of  possession  seems  as  certainly  matter 
dehors  the  record  as  the  fact  of  a  duly  recorded  title.    Both  con- 
stitute notice  of  ownership,  and  it  can  hardly  be  said  that  pos- 
session, as  evidence  of  notice  or  knowledge,  is  of  greater  dignity 
than  the  record,  in  view  of  our  registration  statutes.     Rev.  St. 
1895,  Art.  4652,  declares  that:     'The  record  of  any  grant,  deed 
or  instrument  of  writing  authorized  or  required  to  be  recorded, 
which  shall  have  been  duly  proved  up  or  acknowledged  for  rec- 

14 


210  Taxation  in  Texas. 

ord  and  duly  recorded  in  the  proper  county,  shall  be  taken  and 
held  as  notice  to  all  persons  of  the  existence  of  such  grant,  deed, 
or  instrument.'  If,  then,  the  state,  which  is  bound  as  any  other 
litigant  in  this  respect,  had  notice — knowledge — of  the  existence 
of  the  deeds  to  appellant,  it  had  notice  and  knowledge  of  his 
ownership  at  and  before  the  institution  of  the  suit.  Appellant, 
therefore,  as  a  known  owner,  was  not  made  a  party  to  the  suit 
and  is  not  bound  by  the  judgment."  Wren  v.  Scales,  119  S.  W. 
880;  Scales  v.  Wren,  127  S.  W.  164;  BlanJton  v.  Nunley,  119  S. 
W.  881. 

"Olwners  of  land  holding  under  recorded  deeds  forming  a 
chain  of  title  and  under  a  recorded  decree  of  partition  are  not  un- 
known owners,  and  they  are  not  bound  by  a  judgment  for  delin- 
quent taxes  rendered  in  a  suit  against  unknown  owners."  Nun- 
ley  V.  Blanfon,  126  S.  W.  1110. 

"A  suit  to  foreclose  a  tax  lien  was  brought  against  unknown 
heirs  of  a  person  named  and  the  unknown  owners  of  the  land. 
The  judgment  recited  that  the  'defendants'  were  served,  and  that 
an  attorney  appointed  held  answer  for  the  'defendants,'  and  the 
foreclosure  was  in  general  terms  without  any  mention  of  any 
defendants,  but  the  'defendants'  were  given  the  right  to  have 
the  property  divided  and  sold  in  tracts  less  than  the  whole  sur- 
vey, the  sale  to  be  subject  to  the  right  of  the  'defendants'  to  re- 
deem. Held,  that  the  judgment  foreclosed  the  lien  as  against  all 
the  unknown  owners  made  defendants."  Sellers  v.  Simpson, 
115  S.  W. 


§  302.     Lien  holders. 

Lien  holders  must  be  made  parties  in  order  to  deprive  them  of 
their  rights  in  and  to  the  property,  even  though  the  demand  for 
taxes  is  superior  to  their  lien.  Blair  v.  Guaranty  Savings  Loan 
md  Inv.  Co.,  118  S.  W.  610. 

§  303.     Cases  in  point  only  when  party  is  in  possession. 

"The  evidence  failing  to  show  that  the  appellant  was  in  pos- 
session of  the  land  when  the  foreclosure  suit  was  filed,  and  when 
citation  was  issued  therein,  the  cases  of  Hollyivood  v.  Wellhaiisen, 
28  Tex.  Civ.  App.  541,  68  S.  W.  329,  and  Bingham  v.  Matthews, 
39  Tex.  Civ.  App.  41,  86  S.  W.  781,  relied  on  by  her,  are  therefore 
not  applicable.     Gihhs  v.  Scales,  118  S.  W.  189. 


Parties.  211 

§  304.     All  persons  claiming  interest. 

"In  a  suit  under  the  delinquent  tax  act,  all  parties  owning  or 
claiming  any  interest  in  the  property  must  be  made  parties,  and 
be  served  with  citation."  Ball  v.  Carroll,  92  S.  W.  1024,  42  Tex. 
Civ.  App.  333. 

§  305.     Action  against  state  officer  not  against  state. 

"An  action  against  the  attorney-general,  the  state  comptroller 
and  the  state  treasurer  to  enjoin  the  assessment  and  collection  of 
a  tax  is  not  a  suit  against  the  state,  but  against  the  individual 
officers,"  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Davidson,  93  S.  W. 
436. 

§  306.     State  necessary  party  in  action  to  restrain  collection  of 
taxes. 

"A  suit  against  state  officers  to  restrain  the  collection  of  a 
privilege  tax  on  the  operation  of  oil  wells,  imposed  by  Acts 
29th  Leg.,  p.  358,  Ch,  148,  is  in  fact  a  suit  against  the  state,  and 
cannot  be  maintained  without  its  consent. 

"Where,  in  a  suit  to  restrain  the  collection  of  certain  privi- 
lege taxes,  the  trial  court  refused  to  grant  complainants  any  re- 
lief under  their  petition  for  an  injunction,  the  court's  error  in 
overruling  defendants'  exception  in  limine,  that  the  suit  could 
not  be  maintained  without  the  consent  of  the  state,  was  imma- 
terial." Producers'  Oil  Co.  v.  Stephens,  99  S.  W.  157,  44  Tex. 
Civ.  App.  327;  Texas  Co.  v.  Stephens,  103  S.  W.  481,  100  Tex. 
628. 

§  307.     State  officers  right  to  sue. 

"Where,  in  a  suit  to  restrain  the  collection  of  certain  occupa- 
tion taxes,  defendants,  who  were  state  officers,  answered,  merely 
praying  that  the  state,  which  was  not  a  party  to  the  action,  re- 
cover the  taxes  due,  for  the  purpose  of  obtaining  a  construction 
of  the  statute  and  a  declaration  of  the  extent  of  plaintiff's  lia- 
bility only,  defendants  had  no  such  right  of  action  for  the  taxes 
as  entitled  them  to  an  ordinary  judgment  against  plaintiff  there- 
for."   Texas  Co.  v.  Stephens,  103  S.  W.  481,  100  Tex.  628. 

§  308.     One  in  possession  must  be  party. 

"A  judgment  foreclosing  a  tax  lien  against  unknown  owners 
of  land  rendered  upon  citation  served  by  publication  is  not  bind- 
ing upon  persons  in  actual  possession  of  the  land  at  the  time  of 


212  Taxation  in  Texas. 

the  filing  of  the  suit  and  the  rendition  of  the  judgment,  but  not 
served  with  citation."    Sellers  v.  Simpson,  115  S.  W. 


§  309.     Estate  as  defendant. 

"Where  a  suit  to  foreclose  a  lien  for  taxes  was  brought  solely 
against  the  estate  of  a  certain  person,  which  was  an  entity  in 
law,  and  citation  was  addressed  to  such  estate,  and  judgment  ren- 
dered against  it,  the  owner  of  the  property  was  not  bound." 
Perry  v.  Whiting,  121  S.  W.  903. 

§  310.     State  and  county  not  necessary  parties — ^When. 

"A  plea  in  abatement  to  a  city's  action  for  taxes  that  the  state 
and  county  are  necessary  parties,  in  order  that  their  respective 
tax  liens  may  be  marshaled,  is  properly  overruled  where  it  does 
not  appear  that  the  state  and  county  taxes  are  unpaid."  Benni- 
son  V.  City  of  Galveston,  78  S.  W.  1089,  34  Tex.  Civ.  App.  382. 

§311.     Sale  before  death. 

*'A  wife  and  her  husband  having  parted  with  all  their  inter- 
est in  a  lot,  it  was  not  subject  to  be  administered  as  a  part  of 
her  estate,  and  a  tax  lien  on  it  could  not  be  enforced  through 
such  proceeding."  Toepperwein  v.  City  of  San  Antonio,  124 
S.  W.  699. 

§  312.     Community  or  separate  property. 

"Where  a  judgment  of  foreclosure  of  a  tax  lien  against  a 
lot  was  rendered  against  a  husband  and  wife,  and  she  died 
without  a  sale  of  it,  a  sale  made  after  her  death  would  be  of 
doubtful  effect,  depending  on  whether  it  was  community  or  her 
separate  property,  and  all  questions  as  to  its  effect  would  be  re- 
moved by  a  proceeding  against  a  subsequent  purchaser,  who 
assumed  payment  of  such  judgment,  by  a  judgment  establishing 
a  lien  and  a  clear  right  to  issue  foreclosure  process,  and  the  inclu- 
sion of  such  prior  judgment  in  a  suit  to  enforce  a  lien  for  all 
unpaid  taxes  was  not  for  an  idle  and  vexatious  purpose."  Toep- 
perwein V.  City  of  San  Antonio,  124  S.  W.  699. 


CHAPTER  XV. 
COURTS. 

Sec.  Sec. 

313.  Jurisdiction  of  courts.  316.  Foreclosing    of    lien   on    real 

314.  Limited  jurisdiction  of  court.  estate — Amount     does     not 

315.  Jurisdiction   of  county   court  control. 

to   issue  injunction. 

§  313.     Jurisdiction  of  courts. 

A  suit  to  collect  delinquent  taxes,  where  no  question  of  fore- 
closure is  involved,  is  a  suit  on  debt,  and  should  be  brought  in 
the  court  having  jurisdiction  of  the  amount.  Hozvurd  v.  The 
Mayox,  of  Houston,  59  Tex.  78;  City  of  Henrietta  v.  Eustis,  87 
Tex.  14,  26  S.  W.  619;  State  v.  Trilling,  62  S.  W.  788. 

The  justice  court,  and  not  the  district  court,  has  jurisdiction  of 
an  action  under  R.  S.,  Art.  5212a,  to  recover  taxes  in  the  sum  of 
$120.77  on  the  unrendered  personal  property,  and  the  statutory 
penalty  of  ten  per  cent  thereon  for  failure  to  pay  the  same,  since 
it  is  an  action  on  a  debt,  and  the  ampunt  due  is  within  the 
jurisdiction  of  the  justice  court.    State  v.  Trilling,  62  S.  W.  788. 

The  penalty  provided  for  failure  to  pay  taxes  on  or  before 
the  31st  day  of  January,  conceding  that  it  is  chargeable  against 
the  owner  of  unrendered  personal  property,  is  a  mere  incident 
to  the  principal  obligation,  and  jurisdiction  thereof  will  follow 
the  main  cause  of  action.    State  v.  Trilling,  62  S.  W.  788. 

Sayles'  Statute,  Art.  5232a,  provides  that:  Real  estate 
which  may  have  been  rendered  for  taxes  and  paid  under  errone- 
ous description  given  in  assessment  rolls,  on  land  that  may  have 
been  doubly  assessed  and  taxes  paid  thereon  in  a  county  other 
than  the  one  in  which  they  are  located,  or  land  which  may  have 
been  sold  to  the  state  and  upon  which  taxes  have  been  paid 
and  through  error  not  credited  in  the  assessment  rolls,  shall  not 
be  deemed  subject  to  the  provisions  of  this  chapter."  That  is, 
the  chapter  related  to  the  collection  of  delinquent  taxes  by  suit 
and  it  was  held  that  the  tax  having  been  paid  in  one  assessment, 
though  an  erroneous  description,  a  suit  against  the  unknown 
owner  against  land  properly  described  was  without  jurisdiction 


214  Taxation  in  Texas. 

and  the  judgment  thereunder  absolutely  void,  and  subject  to  col- 
lateral attack.  Hollywood  v.  Wellhausen,  68  S.  W.  329,  28  Tex. 
Civ.  App.  541. 

§314.     Limited  jurisdiction  of  court. 

"A  suit  to  foreclose  a  lien  for  delinquent  taxes  on  property 
of  an  unknown  owner  is  a  proceeding  in  rem,  not  strictly  judi- 
cial, but  only  a  step  in  administration  proceedings,  and  the  judi- 
cial department  is  resorted  to  only  on  account  of  the  dereliction 
of  the  owner.  Hence,  the  jurisdiction  so  invoked  being  special 
and  limited  by  the  act  of  the  legislative  department,  nothing  is 
taken  by  intendment  in  favor  of  the  court's  action,  but  it  must 
appear  from  the  record  itself  that  the  facts  existed  which  author- 
ized the  court  to  act,  and  that  it  kept  within  the  limits  of  its  law- 
ful authority  in  so  doing."    Youfig  v.  Jackson,  110  S.  W.  74. 

§  315.    Jurisdiction  of  county  court  to  issue  injunction. 

"Under  the  amended  judiciary  article  of  the  Constitution  (Art. 
5,  Sec.  16),  giving  the  county  court  exclusive  jurisdiction  where 
the  amount  in  controversy  is  over  $200  and  less  than  $500,  the 
district  court  has  not  jurisdiction  to  restrain  the  collection  of 
taxes  in  the  sum  of  $374,  notwithstanding  the  general  power  of 
the  district  courts  to  issue  writs  of  injunction  and  mandamus. 

"Plaintiff  corporations  brought  a  suit  in  which  they  set  up 
the  illegal  levy  and  assessment  of  taxes  in  a  certain  sum,  the  col- 
lection of  which  was  threatened,  and  prayed  that  the  taxes  be 
declared  illegal  and  their  collection  enjoined,  and  the  petition 
also  alleged  that  the  taxes  were  a  lien  upon  the  land  so  as  to  be 
a  cloud  upon  petitioners'  title,  but  did  not  contain  any  appro- 
priate prayer  for  an  action  to  remove  a  cloud  from  title.  Two 
separate  owners  may  join  in  an  action  to  enjoin  the  collection  of 
illegal  taxes,  but  not  to  remove  a  cloud  on  title  to  land  not  owned 
jointly  by  them.  Held,  that  the  suit  was  not  one  to  remove  a 
cloud  from  title  by  reason  of  the  illegal  assessment  of  taxes,  so 
as  to  give  the  district  court  jurisdiction,  being  only  to  enjoin  the 
collection  of  illegal  taxes,  notwithstanding  the  incidental  alle- 
gations as  to  cloud  upon  title."  Aquilla  State  Bank  v.  Knight, 
126  S.  W.  893. 


Courts.  215 

§316.     Foreclosing  of  lien  on  real  estate— amount  does  not 
control. 

"Where  a  city  brought  an  action  for  taxes  amounting  to  $186, 
and  for  the  foreclosure  of  a  tax  Hen  on  defendant's  real  estate, 
a  plea  to  the  jurisdiction  on  the  ground  that  the  amount  involved 
was  below  the  limit  of  the  jurisdiction  of  the  district  court  was 
properly  overruled,  since,  under  the  Constitution,  the  district 
court  has  jurisdiction  to  foreclose  a  lien  on  land,  regardless  of 
the  amount  involved."  Grace  v.  City  of  Bonham,  63  S.  W.  158, 
23  Tex.  Civ.  App.  161.  . 


CHAPTER  XVI. 


PLEADINGS. 


Sec.  Sec. 

317.  Must  be  verified.         "  337. 

318.  Sufficiency  of  verification  of 

petition.  338. 

319.  Verification  of  answer. 

320.  Answer  not  verified  must  be       339. 

specially  excepted. 

321.  Several  defendants.  340. 

322.  Exhibits.  341. 

323.  Lien. 

324.  Against  owner.  342. 

325.  City  of  Galveston. 

326.  Purpose  of  tax.  343. 

327.  Not   necessary   to    plead    de- 

tails. 344. 

328.  City     ordinances     must     be 

plead  before  they  can  be  in-       345. 
troduced  in  evidence. 

329.  Duly  assessed  sufficient.  346. 

330.  Description  of  real  estate. 

331.  Answer  of  defendant.  347. 

332.  Petition   must   allege   owner-      348. 

ship  in   assessment  against 
unknown  owner.  349. 

333.  Allegations    sufficient    to    ar- 

rive  at    bulk    assessment —      350. 
Presumption  of  legality.  351. 

334.  Amended    petition    must    be 

verified.  352. 

335.  Cross-bill    asking    relief — In- 

voice tax  sale  direct  attack.       353. 

336.  Fraud  in  assessment. 


Allegations — ^What    is    neces- 
sary. 

Pleading    of   ordinance    suffi- 
cient. 

Must   state    property   within 
territory  taxed. 

Description  of  land. 

Answer    must    deny    specifi- 
cally. 

Petition   need  not  allege  ex- 
istence of  debt — When. 

Need   not  plead  city  charter 
when  a  public  act. 

Allegation  that  property  was 
duly  assessed  sufficient. 

Petition     not     demurrable — 
When. 

Averment  assessed  for  taxes 
sufficient. 

Must  state  year. 

Allegations  of  petition — Land 
in  another  county. 

Allegation  to  enjoin  irregular 
assessments. 

School  tax. 

To  enjoin  illegal  excess  must 
allege  what. 

Not    defective    not    to    allege 
collector's  failure  to  collect. 

Must      state      purpose      and 
amount  of  tax. 


§  317.     Must  be  verified. 

%  the  Act  of  1897,  p.  135,  Sec.  7,  the  petition  in  such  suits 
shall  be  signed  by  the  attorney  bringing  the  suit  and  shall  be 
verified  by  the  affidavit  of  said  attorney,  or  county  judge,  to 
the  effect  that  the  averments  contained  in  said  petition  are  true 
to  the  best  knowledge  and  belief  of  affiant,  and  the  pleadings  of 
the  defendant,  except  those  of  law,  shall  be  verified  by  like 
affidavit  of  the  defendant,  his  agent  or  attorney. 


Pleadings.  217 

§  318.     Sufficiency  of  verification  of  petition. 

"A  petition  in  tax  foreclosure,  being  the  instrument  which 
calls  into  activity  the  court's  authority,  and  sets  it  in  motion, 
must  conform  in  law  to  every  substantial  requirement,  or  it 
will  fail  to  confer  jurisdiction ;  but,  when  the  petition  is  other- 
wise sufficient  and  is  signed  and  sworn  to  by  the  county  attor- 
ney of  the  county  where  the  land  is  situated,  it  is  a  substantial 
compliance  with  Sayles'  Ann.  Civ.  St.  1897,  Art,  5232 f,  requiring 
the  petition  in  tax  foreclosure  suits  to  be  signed  by  the  attorney 
bringing  the  suit,  and  verified  by  the  affidavit  of  said  attorney  or 
the  county  judge,  to  the  eiTect  that  the  averments  contained  in 
the  petition  are  true  to  affiant's  best  knowledge  and  belief,  which 
section  also  requires  certain  officers  to  furnish  affidavits,  verified 
copies  of  records  in  their  offices,  etc.,  as  may  be  applied  for  by 
the  county  attorney,  for  the  county  attorney,  or  the  district  at- 
torney in  counties  where  there  is  no  county  attorney,  is  the 
officer  required  by  Art.  5232f  to  represent  the  state  and  county 
in  suits  against  delinquent  taxpayers."  Young  v.  Jackson,  110 
S.  W.  75. 

§  319.     Verification  of  answer. 

"The  defense  of  payment  being  unavailable  unless  pleaded, 
no  evidence  thereof  can  properly  be  allowed  without  such  plea." 
State  V.  Quillen,  115  S.  W.  660. 

§  320.     Answer  not  verified  must  be  specially  excepted. 

"If  an  answer  in  an  action  to  recover  taxes  is  not  sworn  to, 
or  is  not  sworn  to  in  the  manner  required  by  Rev.  St.  1895, 
Art.  5232f,  the  defect  should  be  specifically  excepted  to  by 
plaintiff,  that  it  may  be  amended,  as  such  question  cannot  be 
properly  raised  on  an  objection  to  the  evidence."  State  v.  Quil- 
len, 115  S.  W.  660. 

§  321.     Several  defendants. 

In  a  suit  against  several  jointly,  in  order  to  sustain  a  proper 
judgment  the  petition  should  allege  which  defendants  own  the 
several  tracts  and  the  amount  of  taxes  assessed  against  each 
tract.  Borden  et  al.  v.  City  of  Houston,  26  Tex.  Civ.  App.  29, 
62  S.  W.  426. 

§  322.     Exhibits. 

District  Court  Rule  No.  19,  permitting  the  use  of  exhibits  as 
an  adjunct  to  pleading,  expressly  provides  that  the  exhibit  shall 


218  Taxation  in  Texas. 

not  relieve  the  pleader  from  making  the  necessary  allegations 
of  which  the  exhibit  may  be  the  evidence  in  whole  or  in  part. 
Burden  v.  City  of  Houston,  26  Tex.  Civ.  App.  29,  62  S.  W. 
426;  Pool  V.  Sanford,  52  Tex.  635. 

§  323.     Lien. 

In  order  to  foreclose  a  tax  lien  it  must  be  pleaded.  Stone  v. 
Cortes,  90  Tex.  283,  83  S.  W.  154,  35  L.  R.  A.  666;  Netzorg  v. 
Geren,  62  S.  W.  791,  26  Tex.  Civ.  App.  119. 

§  324.     Against  owner. 

A  petition  in  an  action  to  recover  taxes  on  unrendered  per- 
sonal property,  which  action  is  required  by  Art.  5212a,  R.  S., 
to  be  brought  against  the  persons  owning  the  property  at  the 
time  it  should  have  been  assessed,  which  only  alleges  that  the 
defendant  was  in  possession  thereof  at  such  time,  is  not  a  suf- 
ficient allegation  of  ownership,  as  against  a  demurrer  specifically 
raising  such  objection.     State  v.  Trilling,  62  S.  W.  788. 

§  325.     City  of  Galveston. 

Under  Galveston  City  Charter  (Special  Laws  1876,  p.  23,  Ch. 
11),.  Sec.  79,  authorizing  the  city  by  ordinance  to  levy  and  col- 
lect taxes,  a  petition  in  an  action  by  the  city  for  the  collection 
of  taxes,  which  alleged  that  by  an  ordinance  the  city  had  levied 
and  ordered  to  be  collected  the  tax  due  for  municipal  purposes, 
sufficiently  stated  a  cause  of  action,  and  it  was  not  necessary  to 
set  out  the  acts  which  constituted  the  levy.  Galveston  &  W. 
Ry.  Co.  V.  City  of  Galveston,  74  S.  W.  539,  96  Tex.  520;  Lock- 
art  V.  City  of  Houston,  45  Tex.  323 ;  Parker  v.  City  of  Jackson- 
ville, 37  Fla.  352 ;  Town  of  Elmq  v.  Carney,  4  Wash.  420. 

§  326.     Purpose  of  tax. 

Under  Rev.  Stat.,  Art.  1195,  requiring  a  petition  to  give  a 
full  statement  of  the  cause  of  action  in  a  suit  by  a  city  to  col- 
lect taxes,  the  petition  must  show  the  purpose  for  which  the  tax 
was  levied  and  the  amount  of  the  tax  levied  for  each  purpose 
authorized  by  statute.  Maddox  v.  City  of  Rockport,  38  S.  W. 
397. 

§  327.     Not  neces^ry  to  plead  details. 

To  show  a  cause  of  action  for  taxes  to  pay  interest  on  the 
bonded  city  debt,  and  to  provide  a  sinking  fund  for  its  ultimate 


Pleadings.  219 

redemption,  it  is  sufficient  to  allege  the  passage  of  an  ordinance 
in  each  year  for  which  such  taxes  are  claimed,  levying  a  tax 
for  the  purpose  of  paying  such  interest  and  sinking  fund;  and  it 
is  unnecessary  to  further  aver  the  existence  of  or  the  facts  con- 
stituting such  debt.  Berry  v.  City  of  San  Antonio,  46  S.  W. 
273,  92  Tex.  319. 

§  328.     City  ordinances  must  be  plead  before  they  can  be  in- 
troduced in  evidence. 

Courts  will  not  take  judicial  knowledge  of  the  ordinances  of 
a  municipal  corporation.  They  stand  on  the  same  footing  as 
private  and  special  statutes,  and  the  laws  of  other  states  and  of 
foreign  countries,  and  must  be  averred  and  proved  like  other 
facts.  In  pleading,  the  ordinance  need  not  bet  set  forth  in  totie- 
dene  verbis,  but  the  contents  of  an  ordinance  under  which  a  right 
is  claimed  should  be  substantially  stated  and  not  the  conclusion 
of  the  pleader  as  to  its  scope  and  legal  eflfect.  City  of  Austin  v. 
Walton,  68  Tex.  507;  Sterrett  v.  City  of  Houston,  14  Tex.  153; 
Light  &  Power  Co.  v.  Lefevre,  93  Tex.  607. 

§  329.     Duly  assessed  sufficient. 

The  averment  that  property  was  "assessed  for  taxes"  is  suf- 
ficient, without  detailing  by  whom  it  was  assessed,  and  other 
facts  showing  a  legal  assessment.  To  require  in  the  petition  a 
detail  of  the  facts  necessary  to  make  it  appear  that  the  levy  and 
the  assessment  of  the  tax  were  regular  and  legal  would  be  both 
burdensome  and  useless.  They  are  themselves  facts,  sufficiently 
named  in  their  nature  from  mere  conclusions  of  law  to  admit 
of  being  averred  like  the  protest  of  a  bill  exchange  without  specir 
fying  what  acts  were  done,  or  by  what  officer.  Lockhart  v. 
City  of  Houston,  45  Tex.  323 ;  G.  &  W.  Ry.  Co.  v.  City  of  Gal- 
veston, 96  Tex.  525. 

§  330.     Description  of  real  estate. 

In  a  suit  for  taxes  due  on  real  estate,  the  petition  should  desig- 
nate and  describe  the  real  estate  on  which  the  taxes  are  due 
and  the  action  to  justify  the  sale  of  the  land  for  the  taxes  must 
be  an  action  in  rem,  as  no  sale  can  be  made  under  a  judgment  in 
persona.     Clegg  v.  State,  42  Tex.  605. 

§  331.     Answer  of  defendant. 

"Where  the  pleadings  of  both  parties  are  required  to  be  sworn 
to,  in  an  action  by  the  state  to  foreclose  a  tax  lien,  it  is  unnec- 


220  Taxation  in  Texas. 

essary  for  the  state  to  prove  facts  admitted  in  defendant's  veri- 
fied answer."  League  v.  State,  56  S.  W.  262,  93  Tex.  553 ; 
League  v.  State,  57  S.  W.  34. 

"The  defendant  claims  that  his  general  denial  prevents  the 
taking  of  the  answer  as  true,  and  that  there  was  no  proof  show- 
ing that  the  state  had  title  in  the  land,  or  that  the  defendant  him- 
self was  claiming  title  thereto.  The  law  under  which  this  pro- 
ceeding is  had  required  the  pleadings  of  both  parties  to  be 
sworn  to.  A  general  denial  is  not  applicable  to  the  case.  It  is 
similar  to  the  practice  in  case  of  mandamus,  where  it  is  held  that 
because  a  defendant  is  required  to  traverse  the  allegations  of 
the  plaintiff,  or  to  confess  and  avoid  them,  a  general  denial  is 
no  answer,  and  will  not  prevent  judgment  being  taken  upon  the 
petition  and  the  answer.  Sansam  v.  Mercer,  68  Tex.  488,  5 
S.  W.  62.  It  was  unnecessary  for  the  state  to  prove  the  facts 
alleged  and  sworn  to  by  the  defendant.  Ogden  v.  Boose,  86  Tex. 
344,  24  S.  W.  798."    League  v.  State,  57  S.  W.  35. 

§  332.  Petition  must  allege  ownership  in  assessment  against 
unknown  owners. 
"There  was  no  averment  in  the  petition  that  the  taxes  were 
assessed  against  the  defendants,  or  that  they  were  the  owners 
of  the  land,  during  the  years,  or  any  of  the  time,  for  which  the 
land  was  reported  delinquent,  and  consequently  there  could  be  no 
personal  judgment  against  the  defendants  for  any  part  of  the 
tax  alleged  to  be  due  and  delinquent.  It  did  not  appear  from 
any  averment  in  the  petition  that  the  defendants  were  the  owners 
of  the  land  at  the  time  the  suit  was  brought,  or  that  they  were  at 
any  time  the  owners  thereof.  Consequently  there  was  no  cause 
of  action  shown  against  the  defendants  for  a  foreclosure  of  the 
lien  upon  the  land  for  the  taxes.  The  plaintiff  could  not  main- 
tain a  suit  for  the  recovery  of  the  taxes  by  a  foreclosure  of  the 
the  lien  and  sale  of  the  land  without  a  party  defendant ;  and 
such  party  must  be  a  person  claiming  the  land,  and  not  a  fictitious 
person,  or  one  not  the  owner  thereof  or  claiming  title  thereto. 
If  the  name  of  the  owner  should  be  unknown,  it  would  then  be 
necessary  to  make  such  unknown  party  defendant,  according  to 
the  practice  in  such  case.  The  petition  contained  the  general 
averments  that  the  defendants  were  indebted  to  the  state  of 
Texas  and  Angelina  county  for  the  taxes,  which  were  a  lien  upon 


Pleadings.  221 

the  land ;  but  other  averments  showed  that  the  taxes  were  assessed 
upon  the  land  during  the  time  for  which  the  assessments  were 
made,  or  ever  at  any  time  owned  it.  The  state  cannot  go 
into  court  and  have  the  land  sold  for  the  payment  of  taxes  with- 
out a  suit  filed  and  prosecuted  to  judgment,  with  proper  parties. 
No  cause  of  action  was  shown  against  the  defendants,  and,  the 
plaintiff  having  declined  to  amend,  the  suit  was  properly  dis- 
missed." State  V.  Mantooth,  49  S.  W.  683,  20  Tex.  Civ.  App. 
396. 

§  333.     Allegations  sufficient  to  arrive  at  bulk  assessment — 
Presumption  of  legality. 

"In  an  action  by  a  city  to  collect  taxes  assessed,  where  it  does 
not  appear  whether  the  property  was  rendered  or  not  by  the 
owner,  as  required  by  law,  but  the  petition  avers  that  the  taxes 
were  legally  levied  and  rendered  and  the  exhibit  attached  shows 
description  of  the  property,  rate  of  taxation,  and  the  amount  due, 
the  owner  cannot  complain  that  the  lots  were  not  separately  as- 
sessed, as  the  property  might  have  been  rendered  by  him  to  be 
assessed  in  gross.  . 

"A  petition  in  an  action  to  enforce  an  assessment  authorized 
by  a  city  ordinance  need  not  state  for  what  purposes  the  assess- 
ment was  made,  where  it  alleges  that  ordinances  of  the  city  pro- 
vided for  the  levy  of  a  certain  per  cent  on  property  valuation." 
Harris  v.  City  of  Houston,  52  S.  W.  653,  21  Tex.  Civ.  App.  432. 

§  334.     Amended  petition  must  be  verified. 

"Under  Acts  1897,  pp.  134-6,  providing  for  foreclosure  of  tax 
liens,  and  which  requires  pleadings  to  be  verified,  a  judgment 
by  default  may  not  be  entered  on  an  unverified  amended  petition, 
and  this  though  the  original  petition  was  verified."  Cockrell  v. 
State,  55  S.  W.  579,  22  Tex.  Civ.  App.  568. 

§  335.     Cross-bill  asking  relief — Invoice  tax  sale  direct  attack. 

"Where  one  claiming  title  through  a  city  which  had  purchased 
property  on  foreclosure  of  a  tax  lien,  sued  to  try  title  against 
the  original  owner,  who  filed  a  cross-bill  alleging  that  the  court  in 
the  foreclosure  proceedings  had  no  jurisdiction,  for  the  reason 
that  he  had  not  been  cited  and  had  not  appeared  therein,  and 
asking  that  the  cross-bill  be  taken  as  a  direct  attack  on  such 
judgment  and  proceedings,  and  offering  to  pay  all  sums  due  on 


222  Taxation  in  Texas. 

such  tax  claim  and  costs,  such  bill  was  a  direct  and  not  a  col- 
lateral attack  on  the  foreclosure  judgment,  since  by  joining  the 
city  as  a  party,  defendant  became  a  plaintiff  and  was  entitled  to 
the  same  relief  as  if  he  had  brought  the  suit."  Scanlan  v.  Camp- 
hell,  55  S.  W.  501,  22  Tex.  Civ.  App.  505. 

§  336.     Fraud  in  assessment. 

"In  a  suit  to  recover  taxes,  fraud  of  the  board  of  equalization 
in  making  assessment  may  be  pleaded."  Mann  v.  State,  46  S.  W. 
652,  18  Tex.  Civ.  App.  701. 

§  337.     Allegations — What  is  necessary. 

"To  show  a  cause  of  action  for  taxes  to  pay  interest  on  the 
bonded  city  debt,  and  to  provide  a  sinking  fund  for  its  ultimate 
redemption,  it  is  sufficient  to  allege  the  passage  of  an  ordinance 
in  each  year  for  which  such  taxes  are  claimed,  levying  a  tax 
for  the  purpose  of  paying  such  interest  and  sinking  fund ;  and  it 
is  unnecessary  to  further  aver  the  existence  of  or  the  facts  con- 
stituting such  debt."  Berry  v.  City  of  'San  Antonio,  46  S.  W. 
273,  92  Tex.  319. 

"A  complaint,  in  an  action  by  a  city  in  trespass  to  try  title, 
set  up  that  certain  property  was  purchased  by  the  city  at  a  tax 
sale,  which  defendant  claimed  was  sold,  and  asked  judgment 
for  the  delinquent  taxes,  if  the  sale  was  held  to  have  been  void. 
Held,  that  the  complaint  did  not  allege  the  sale  was  void,  and 
hence  it  was  not  necessary  to  set  up  wherein  it  was  void."  Conk- 
lin  V.  City  of  El  Paso,  AA  S.  W.  879. 

§  338.     Pleading  of  ordinance  sufficient. 

"A  complaint  by  a  municipality  to  recover  special  taxes  to  pay 
bonded  indebtedness  of  the  city,  which  pleads  the  ordinances 
making  the  levy,  need  not  allege  the  existence  of  the  indebtedness 
or  the  facts  constituting  such  debt."  City  of  San  Antonio  v. 
Berry,  48  S.  W.  496,  92  Tex.  319. 

§  339.     Must  state  property  within  territory  taxed. 

"The  suit  is  to  recover  a  special  tax  assessed  for  a  special  pur- 
pose within  a  given  territory,  comprising  a  portion  only  of  a 
county.  It  is  alleged  that  the  tax  was  assessed  upon  certain 
real  estate,  and  in  order  to  show  that  such  assessment  was  legal, 
and  liability  for  the  payment  of  the  tax  existed,  it  was  necessary 
for  the  plaintiff  to  allege  that  the  real  estate  involved  was  within 


Pleadings.  223 

the  limits  of  the  territory  referred  to.  This  the  petition  wholly 
fails  to  do,  and  for  this  reason  appellant's  general  demurrer 
should  have  been  sustained.  Cooley  on  Taxation,  p.  159.  It  is 
true  the  petition  alleges  that  the  taxes  sued  for  were  legally  and 
duly  levied  and  assessed,  but  that  is  merely  the  averment  of  the 
pleader's  conclusion,  and  not  an  allegation  of  facts  showing  the 
correctness  of  such  conclusion.  Millican  v.  McNeil,  92  Tex.  400, 
49  S.  W.  219."  Miller  v.  Crawford  Independent  School  District, 
63  S.  W.  894,  26  Tex.  Civ.  App.  495. 

§  340.     Description  of  land. 

"Where,  in  tax  suit  proceedings,  land  in  survey  No.  150  is 
attempted  to  be  described,  but  is  described  as  No.  130,  the  error 
in  the  description  is  fatal  to  the  proceedings.  Wolf  v.  Gibbons, 
69  S.  W.  238;  Brokel  v.  McKechnie,  69  Tex.  33;  Brakel  v.  Mc- 
Kechnie,  6  S.  W.  623. 

§  341.     Answer  must  deny  specifically. 

Law  1897,  Ch.  103,  in  suits  for  state  taxes,  required  the  plead- 
ings of  both  parties  to  be  sworn  to.  A  general  denial  is  not  ap- 
plicable. It  is  similar  to  the  practice  in  case  of  mandamus, 
where  it  is  held  that  because  a  defendant  is  required  to  traverse 
the  allegations  of  the  plaintiff,  or  to  confess  and  avoid  them,  a 
general  denial  is  no  answer,  and  will  not  prevent  judgment 
being  taken  upon  the  petition  and  answer.  League  v.  State,  57 
S.  W.  34,  93  Tex.  553 ;  Sansom  v.  Mercer,  68  Tex.  488,  5  S. 
W.  62. 

§  342.     Petition  need  not  allege  existence  of  debt — When. 

A  petition  to  recover  special  taxes  to  pay  city  bonded  indebt- 
edness, pleading  ordinances  making  the  levy,  need  not  allege 
existence  of  the  debt.  Wright  v.  City  of  San  Antonio,  50  S.  W. 
406. 

§  343.     Need  not  plead  city  charter  when  a  public  act. 

A  petition,  in  an  action  against  a  city,  need  not  plead  provi- 
sions of  its  charter  on  which  the  action  is  based,  where  the  charter 
has  been  declared  a  public  act  of  which  judicial  notice  must  be 
taken.    Wright  v.  City  of  San  Antonio,  50  S.  W.  406. 


224  Taxation  in  Texas. 

§  344.  Allegation  that  property  was  duly  assessed  sufficient. 
A  petition  by  a  city  for  the  recovery  of  taxes,  alleging  that 
the  property  was  duly  assessed  for  taxation,  authorizes  proof 
of  the  assessment.  Wright  v.  City  of  San  Antonio,  50  S.  W. 
406. 

§  345.     Petition  not  demurrable — When. 

In  an  action  for  a  personal  judgment  for  taxes,  the  petition 
alleging  that  the  taxes  were  levied  to  provide  for  interest  and 
sinking  fund  on  outstanding  bonds,  is  not  demurrable  because  no 
tax  can  be  collected  to  pay  interest  on  bonds  prior  to  their  sale. 
Moody  V.  City  of  Galveston,  50  S.  W.  482,  21  Tex.  Civ.  App.  16. 

§  346.     Averment  assessed  for  taxes  sufficient. 

"The  averment  that  property  was  'assessed  for  taxes'  is  suf- 
ficient, without  detailing  by  whom  it  was  assessed,  and  other 
facts  showing  a  legal  assessment.  The  'levy  and  assessment'  are 
themselves  facts  sufficiently  removed  in  their  nature  from  mere 
conclusions  of  law  to  admit  of  being  averred  without  setting 
out  what  acts  were  done,  or  by  what  officer,  in  making  the  levy 
and  assessment."  Robert  Lochart  v.  Mayor,  Aldermen,  etc.,  of 
the  City  of  Houston,  45  Tex.  317. 

§  347.     Must  state  year. 

'Tn  an  action  of  trespass  to  try  title,  where  the  defendant  relied 
upon  a  tax  deed  for  his  title,  the  answer  set  up  that  the  tax  deed 
was  issued  in  pursuance  to  a  sale  for  the  unpaid  taxes  of  the  year 
18 — .  Held,  that  the  plea  was  fatally  defective  in  not  stating 
the  year  for  which  the  taxes  were  due."  Gulf,  C.  &  S.  F.  Ry. 
Co.  V.  Poindexter,  7  S.  W.  316,  70  Tex.  98. 

§  348.     Allegations  of  petition — Land  in  another  county. 

"Gen.  Laws  Tex.  1879,  pp.  24,  28,  provide  that  assessors  shall 
be  furnished  with  a  correct  abstract  of  the  surveys  in  their  sev- 
eral counties ;  and  that  any  lands  which  have  been  assessed  in 
any  county  according  to  the  abstract  of  land  titles,  and  the 
taxes  paid  thereon,  shall  not  be  afterwards  subject  to  the  pay- 
ment of  taxes  for  the  same  period  in  a  different  county,  although 
a  subsequent  survey  shall  show  the  said  land  to  be  in  the  latter 
county.  Held,  where  one  claiming  his  lands  to  be  in  a  certain 
county  sought  to  restrain  the  assessor  of  another  county  from 
listing  them,  on  the  ground  that  they  would  thereby  be  subject 


Pleadings.  225 

to  double  taxation,  that  the  petition  was  insufficient  which  did 
not  aver  that  the  abstract  showed  the  land  to  be  in  the  former 
county.    Chrisholm  v.  Adams,  10  S.  W.  336,  71  Tex.  678. 

§  349.     Allegation  to  enjoin  irregular  assessments. 

"I  Sayles'  Civ.  St.,  Art.  1517a,  provides  that  the  board  of 
equalization  shall  have  power  to  correct  any  errors  in  the  assess- 
ment of  property  at  any  time  before  the  tax  thereon  is  paid.  Held, 
that  where  a  party  fails  to  allege  in  his  petition  that  he  has  ap- 
plied to  the  commissioners'  court  to  correct  an  alleged  irregularity 
and  overvaluation,  an  injunction  to  restrain  the  collection  of  the 
alleged  irregularly  assessed  taxes-  will  be  denied."  Swenson  v. 
McLaren,  21  S.  W.  300,  2  Tex.  Civ.  App.  331. 

§  350.     School  tax. 

To  authorize  a  judgment  for  the  recovery  of  any  tax  for  school 
purposes  due  cities  incorporated  under  the  general  law,  it  must 
be  averred  and  proved  that  the  city  had,  in  accordance  with  the 
provisions  of  the  statutes  authorizing  such  action,  been  duly  or- 
ganized into  a  separate  school  district.  McCombs  v.  City  of 
Rockport,  14  Tex.  Civ.  App.  561. 
§  351.     To  enjoin  illegal  excess  must  allege  v^^hat. 

A  petition  which  alleges  that  a  city  has  exempted  a  water  com- 
pany from  taxation,  in  consideration  of  its  supplying  the  city  with 
water  at  reduced  rates,  and  that  plaintiff  taxpayer  is  thereby 
obliged  to  pay  higher  taxes  than  he  otherwise  would,  is  insuffi- 
cient to  entitle  him  to  maintain  an  action  to  enjoin  the  amount  of 
such  illegal  excess,  when  neither  the  amount  thereof,  nor  other 
amounts  from  which  it  may  be  calculated,  is  averred.  Altgelt  v. 
City  of  San  Antonio,  17  S.  W.  75,  81  Tex.  436. 
§  352.     Not  defective  not  to  allege  collector's  failure  to  collect. 

Gen.  Laws  1905,  p.  317,  Chap,  129,  Sec.  2,  provides  that  no  tax 
collector  shall  be  allowed  to  credit  for  lists  of  delinquent  or  insol- 
vent taxpayers  as  provided  by  Rev.  St.  1895,  Art.  5170,  until  he 
makes  oath  in  writing  that  he  has  exhausted  all  resources  to  col- 
lect the  taxes  under  specified  statutes.  Held,  that  such  provision 
had  no  reference  to  fees  to  which  the  collector  is  entitled  in  suits 
to  collect  delinquent  taxes  under  such  act,  and  hence  a  petition 
for  such  relief  was  not  defective  for  failure  to  allege  that  the 
tax  collector  had  performed  the  duties  prescribed  in  Section  2. 
Unknown  Owner  v.  State,  118  S.  W.  803. 
15 


226  Taxation  in  Texas. 

§  353.     Must  state  purpose  and  amount  of  tax. 

Under  Rev.  St.  1879,  Art.  1195,  requiring  a  petition  to  give  a 
full  statement  of  the  cause  of  action  in  a  suit  by  a  city  to  collect 
taxes,  the  petition  must  show  the  purpose  for  which  the  tax  was 
levied,  and  the  amount  of  the  tax  levied  for  each  purpose  author- 
ized by  statute.    Maddox  v.  City  of  Rockport,  38  S.  W.  397. 


CHAPTER  XVII. 


SERVICE. 


Sec.  r    Sec. 

354.  Service — How  made.  365. 

355.  Notice  to   non-residents — Un- 

known   owners     and     other      366. 
proceedings     in     suits     for 
taxes.  367. 

356.  Insufficient      service  —  Judg-      368. 

ment  void. 

357.  What  citation  by  publication      369. 

should  contain.  370. 

358.  Personal  judgment. 

359.  Jurisdiction  of  non-resident.  371. 

360.  Citation  by  publication  strict- 

ly construed. 

361.  Sufficiency  of  notice  and  pub-      372. 

lication     against     unknown 

onwers.  373. 

362.  Citation  in  tax  cases  different. 

363.  Date  of  filing.  374. 

364.  Act   1897   repealed   all  other 

laws.  375. 


Where  one   is   in   possesiion 

and  title  of  record. 
Appointment  of  attorney  and 

statement  of  facts. 
Proof  of  publication. 
Void  service  against  unknown 

owners. 
Must  describe  land. 
May  be  addressed  directly  to 

defendants. 
Citation      against      unknown 

owners     governed     by     the 

special  statutes. 
Proper  affidavit  must  be  filed 

or  judgment  is  invalid. 
May  be  collaterally  attacked 

—When. 
When  good  against  unknown 

owners. 
Liability  of  county  to  pay  for 

citation  by  publication. 


§354..    Service — How  made. 

Under  the  Law  of  1897,  p.  134,  Sec.  7,  it  is  provided  that  the 
defendants  be  served  with  process,  and  other  proceedings  had 
therein  as  provided  by  law  for  suits  of  like  character  in  the  dis- 
trict courts  of  this  state. 

§  355.     Notice  to  non-residents — Unknown  owners  and  other 
proceedings  in  suits  for  taxes. 

Wherever  the  owner  or  owners  of  any  lands  or  lots  returned 
delinquent  or  reported  sold  to  the  state  or  that  may  hereafter  be 
reported  sold  or  returned  delinquent  for  the  taxes  due  thereon 
for  any  year  or  number  of  years,  are  non-residents  of  the  state 
or  the  name  of  the  owner  or  owners  of  said  land  or  lots  be  un- 
known, then  upon  affidavit  setting  out  that  the  owner  or  owners 
are  unknown  to  the  attorney  for  the  state  and  after  inquiry  can 


228  Taxation  in  Texas. 

not  be  ascertained,  said  parties  shall  be  cited  and  made  parties 
defendant  by  notice  in  "The  name  of  the  state  and  county  directed 
to  all  persons  owning  or  having  or  claiming  any  interest  in  the 
following  described  land  delinquent  to  the  state  of  Texas  and 

county  of ,  for  taxes,  to-wit:  (here  set  out  description 

of  the  land  as  contained  on  the  assessment  roll  and  such  further 
description  obtainable  in  the  petition),  which  said  land  is  de- 
linquent for  taxes  for  the  following  amounts:   $ for  state 

taxes  and  $ for  county  taxes,  and  you  are  hereby  notified 

that  suit  has  been  brought  by  the  state  for  the  collection  of  said 
taxes,  and  you  are  comrnanded  to  appear  and  defend  such  suit 

at  the  term  of  the  district  court  of  GDunty,  and 

state  of  Texas,  and  show  cause  why  judgment  shall  not  be  ren- 
dered condemning  said  land  (or  lot)  and  ordering  sale  and  fore- 
closure thereof  for  said  taxes  and  costs  of  suit,"  which  notice 
shall  be  signed  by  the  clerk  and  shall  be  published  in  some  news- 
paper published  in  said  county  one  time  a  week  for  three  consecu- 
tive weeks.  If  there  is  no  newspaper  published  in  the  county 
then  notice  may  be  given  by  publication  in  a  paper  in  an  adjoin- 
ing county.  A  maximum  fee  of  two  and  one-half  cents  per  line 
(seven  words  to  count  a  line)  for  each  insertion  may  be  attached 
for  publishing  the  citation  as  above  provided  for.  If  the  publica- 
tion of  such  citation  can  not  be  had  for  the  compensation  provided 
for  in  this  article,  then  publication  of  the  citation  herein  provided 
may  be  made  by  posting  a  copy  at  three  different  places  in  the 
county,  one  of  which  shall  be  at  the  court  house  door.  It  shall  be 
lawful  in  all  cases  to  set  forth  in  the  petition  the  names  of  all 
parties  interested  as  far  as  ascertained,  and  may  make  them  par- 
ties and  also  to  join  and  make  defendants  of  all  persons  having 
or  claiming  any  legal  or  equitable  interest  in  the  land  described 
in  the  petition,  and  such  suit  after  such  publication  shall  be  pro- 
ceeded with  as  in  other  cases,  and  whether  any  party  or  parties 
make  defense  or  not  on  the  trial  of  said  case  the  state  and  county 
shall  be  entitled  to  prove  the  amount  of  taxes  due  and  shall  have 
a  decree  for  the  sale  of  said  land  or  lot  as  in  those  cases  where 
defendant  owners  have  been  personally  served  and  defend  suit, 
and  a  sale  of  said  land  or  lot  shall  be  had  and  be  as  binding  as 
where  defendants  were  personally  served  with  process.  In  all 
suits  for  taxes  due  the  defendant  shall  be  entitled  to  credits  he 
can  show  due  him  for  any  year  or  number  of  years  for  which  he 


Service.  229 

may  be  able  to  produce  receipts,  but  the  state  shall  have  judgment 
and  foreclosure  of  tax  lien  for  any  year  or  years  sued  for  where 
the  defendant  can  not  offer  receipt  or  other  positive  proof  show- 
ing the  payment  of  the  claim  for  the  taxes.  Act  1897,  p.  138, 
Sec.  15;  Sayles  R.  S.,  Art.  S2?>2o. 

§  356.     Insufficient  service — ^Judgment  void. 

A  judgment  in  a  tax  suit  and  a  sale  of  land  thereunder,  ren- 
dered and  made  pursuant  to  a  service  of  process  by  publication 
against  the  unknown  owners,  and  to  a  trial  in  which  there  was  no 
appearance  by  the  owner,  was  void,  where  the  premises  were  ac- 
tually occupied  by  the  owner  as  a  homestead  at  the  time  of  the 
proceedings.  Crosby  v.  Terry,  91  S.  W.  652,  41  Tex.  Civ.  App. 
594. 

Under  Acts  1897,  p.  138,  Chap.  103,  Sec.  15,  prescribing  the 
requisites  of  notice  in  tax  suits,  and  providing  that  the  notice  shall 
be  in  "the  name  of  the  state  and  county"  and  directed  to  all  per- 
sons "owning  or  having  or  claiming  any  interest"  in  the  land,  a 
notice  running  in  the  name  of  the  state  only,  and  directed  to  the 
sheriff  or  any  constable  of  the  county,  commanding  him  to  sum- 
mon "Unknown  persons  whose  residence  is  unkown,"  was  fatally 
defective,  and  judgment  based  thereon  was  void.  Babcock  v. 
Wolff arth,  80  S.  W.  642,  35  Tex.  Civ.  App.  512. 

Under  General  Laws  1897,  p.  138,  Chap.  103,  Sec.  15,  prescrib- 
ing the  form  of  the  citation  or  notice  in  tax^  cases  when  the  owner 
of  lands  charged  to  be  delinquent  is  a  non-resident,  which  pre- 
scribed form,  among  other  things,  directs  that  the  party  sued  shall 
be  cited  and  made  party  defendant  by  notice  "in  the  name  of  the 
state  and  county  directed  to  all  persons  owning  or  claiming  any 
interest"  in  the  land  to  be  affected  a  notice  not  complying  with 
such  form  is  insufficient  to  support  a  judgment  for  taxes  with 
foreclosure  of  tax  lien.  Garvey  v.  State,  88  S.  W.  873 ;  Babcock 
V.  Wolffarth,  80  S.  W.  642,  35  Tex.  Civ.  App.  512. 

§  357.     What  citation  by  publication  should  contain. 

Under  R.  S.,  Art.  1235,  requiring  a  citation  on  a  non-resident 
by  publication  to  contain  a  brief  statement  of  the  cause  of  action, 
a  citation  in  a  suit  for  taxes  is  insufficient  to  support  a  default 
in  judgment;  where  it  only  alleges  a  gross  sura  to  be  due  from 
all  defendants  for  certain  years  as  taxes  on  land  merely  described 


230  Taxation  in  Texas. 

as  1,002  acres,  a  part  of  the  Smith  survey  in  Harris  County. 
Borden  et  al.  v.  City  of  Houston,  26  Tex.  Civ.  App.  29,  62  S.  W. 
427. 

Citation  by  pubHcation  being  at  best  but  a  substitute  for  per- 
sonal service  and  ex  parte  in  its  character,  the  requisites  prescribed 
by  law  should  be  strictly  complied  with.  Stegall  v.  Huff,  54  Tex. 
196 ;  Borden  et  al.  v.  City  of  Houston,  62  S.  W.  427 ;  Netzorg  v. 
Geren,  62  S.  W.  791,  26  Tex.  Civ.  App.  119. 

The  article  of  the  statute  prescribing  the  requisites  of  a  cita- 
tion by  publication  requires  more  than  must  be  contained  in  a 
citation  to  be  served  in  the  county  when  the  suit  is  instituted. 
In  the  latter  it  need  state  only  the  nature  of  the  plaintiff's  de- 
mand, whereas  in  the  former  it  must  contain  a  brief  statement  of 
the  cause  of  action.  (R.  S.,  Art.  1235.)  Borden  et  al.  v.  City  of 
Houston,  26  Tex.  Civ.  App.  29 ;  Pipkin  v.  Kaufman,  62  Tex.  545. 

§  358.     Personal  judgment. 

It  is  settled  that  personal  judgments  against  non-residents  upon 
service  by  publication  are  void.  Pennoyer  v.  Neff,  95  U.  S.  714; 
Wilson  V.  Seleynon,  144  U.  S.  41 ;  York  v.  State,  73  Tex.  651 ; 
Taliaferro  v.  Batter,  77  Tex.  578;  Brezmng  Co.  v.  Hirsch,  78 
Tex.  192 ;  Foote  v.  Sewell,  81  Tex.  659 ;  Netsorg  v.  Geren,  62  S. 
W.  791,  26  Tex.  Civ.  App.  119. 

§  359.     Jurisdiction  of  non-resident. 

In  order  to  obtain  jurisdiction  over  the  property  of  a  non-resi- 
dent through  service  by  publication,  every  essential  requisite  of 
the  law  must  be  strictly  complied  with.  Allen  v.  Wyser,  29  Tex. 
151 ;  Stephenson  v.  Railway  Co.,  42  Tex.  162;  Byrnes  v.  Samp- 
son, 74  Tex.  79,  11  S.  W.  \07Z;  Netsorg  v.  Geren,  62  S.  W.  791, 
26  Tex.  Civ.  App.  119. 

§  360.     Citation  by  publication  strictly  construed. 

Service  by  publication  is,  at  best,  but  a  miserable  substitute 
for  the  notice  usually  required  to  bring  the  citizen  into  court,  and 
is  not  justified  on  any  ground  but  that  the  state  has  the  right  to 
subject  the  property  within  the  borders  to  the  payment  of  debts 
due  by  a  non-resident  to  it  or  any  of  its  citizens,  and  can  in  no 
other  way  adjust  rights  between  non-residents  and  itself  or  its 
inhabitants.  The  rule  is  based  upon  the  fiction  that  property  is 
always  in  the  possession  of  its  owner,  either  in  person  or  through 


Service.  231 

an  ag-ent.  Being  outside  the  state,  the  non-resident  can  not  be 
reached  by  personal  service  and  it  is  only  through  and  in  con- 
nection with  his  property  that  any  of  his  rights  can  be  adjudi- 
cated. Such  being  the  case,  how  essential  it  is  that  he  should  be, 
in  the  manner  prescribed  by  law,  notified  of  any  attempt  to  sub- 
ject his  property  to  the  payment  of  any  demands  against  him. 
'Netsorg  v.  Geren,  62  S.  W.  791,  26  Tex.  Civ.  (App.  119. 

Where  a  citation  by  publication  of  a  non-resident  defendant  in 
an  action  by  the  state  to  recover  taxes  and  foreclose  the  tax  lien 
on  the  land,  stated  that  the  action  was  for  taxes  for  a  certain 
sum  for  a  certain  year  on  certain  described  property,  but  did  not 
state  that  the  action  was  also  to  foreclose  the  tax  lien ;  the  cita- 
tion did  not  contain  a  statement  of  the  cause  of  action  as  re- 
quired by  Sayles  Civ.  St.,  Art.  1235,  so  as  to  give  the  court  juris- 
diction, and  therefore  the  owner  may  recover  the  land  sold  under 
a  default  judgment  foreclosing  the  lien.  Netsorg  v.  Geren,  62 
S.  W.  791,  26  Tex.  Civ.  App.  119. 

It  was  contended  on  motion  for  rehearing  in  the  last  cited 
case  {Netsorg  v.  Geren)  in  effect,  that  appellant  having  been 
notified  by  citation  by  publication  that  he  had  been  sued  in  the 
district  court  of  Grayson  County  for  taxes  in  the  sum'  of  $7.72. 
He  was  thereby  notified  that  a  forclosure  of  the  statutory  lien 
was  sought  because  the  district  court  could  not  have  assumed 
jurisdiction  of  a  suit  for  that  sum  unless  there  was  also  a  suit 
to  foreclose  lien  on  real  property.  Appellant,  being  a  resident 
of  another  state,  was  not  charged  with  knowledge  of  the  laws 
of  Texas  {M  or  eland  v.  Atchison,  19  Tex.  303).  If  it  was  neces- 
sary to  ask  for  a  foreclosure  of  the  lien  in  the  petition,  it  was 
necessary  to  notify  appellant  that  such  foreclosure  had  been  asked. 
Netsorg  v.  Geren,  62  S.  W.  791,  26  Tex.  Civ.  App.  119. 

Sayles  Ann.  Civ.  St.  1897,  Art.  5232o,  provides  for  a  notice  to 
non-residents  on  suits  for  taxes,  to  be  directed  to  all  persons 
owning  or  claiming  any  interest  in  the  land,  and  which  shall  state 
that  suit  has  been  brought  for  the  collection  of  the  taxes,  and 
command  those  owning,  etc.,  to  appear  and  defend  such  suit.  A 
notice  was  directed  to  the  sheriff  or  any  constable  of  the  county, 
and  notified  him  that  suit  had  been  brought,  and  commanded  him 
to  appear  and  defend  it,  and  show  cause,  etc.  Held,  that  notice 
was  fatally  defective,  as  it  was  contended  by  the  defendants  in  the 
tax  suit  ( 1 )  that  the  notice  was  not  directed  to  "all  persons  own- 


232  Taxation  in  Texas. 

ing  or  having  or  claiming  any  interest"  in  the  land;  (2)  that  it 
did  not  notify  them  that  suit  had  been  brought  by  the  state  for 
the  collection  of  said  taxes;  and  (3)  that  it  did  not  command 
them  to  appear  and  show  cause  why  judgment  should  not  be  ren- 
dered condemning  said  land,  and  ordering  it  sold  for  taxes  and 
costs  of  suit,  as  provided.  On  the  contrary,  it  was  directed  to 
the  sheriff  or  any  constable,  notifying  him  that  suit  had  been 
brought  by  the  state  for  the  collection  of  said  taxes,  and  com- 
manded him  to  appear  and  defend  it.  Earnest  v.  Glaser,  74  S.  W. 
605 ;  Babcock  v.  WoWarth,  80  S.  W.  642,  35  Tex.  Civ.  App.  512. 

§  361.  Sufficiency  of  notice  and  publication  against  unknown 
owners. 

The  notice  by  publication  in  some  newspaper  published  in  the 
county  once  a  week  for  three  consecutive  weeks,  required  by 
Sayles  Ann.  Civ.  St.  1897,  Art.  5232o,  in  suits  to  foreclose  tax 
liens  where  the  owner  is  a  non-resident  or  his  name  is  unknown, 
is  appropriate  to  the  nature  of  the  case,  and  sufficient  to  meet 
the  requirement  of  due  process  of  law. 

Notice  to  unknown  owners  by  publication  for  three  months  in 
a  newspaper,  as  required  by  Sayles  Ann.  Civ.  St.  1897,  Art. 
5232o,  in  suits  to  foreclose  tax  liens,  is  sufficient,  even  though  the 
unknown  owners  chance  to  be  heirs  of  the  original  patentee,  not- 
withstanding Article  1236,  providing  that  where  property  may 
have  accrued  to  the  heirs  of  any  deceased  person,  any  party  hav- 
ing a  claim  against  them,  relative  to  such  property,  if  their  names 
are  unknown  to  him,  may  sue,  describing  them  as  heirs  of  such 
ancestors,  naming  them,  and  that  citation  shall  command  them 
to  be  summoned  by  making  publication  of  citation  once  each 
week  for  eight  successive  weeks  previous  to  the  return  of  such 
citation ;  for  the  representative  of  the  state  may  have  been  ignor- 
ant that  the  unknown  owners  were  such  heirs,  and  is  not  charge- 
able with  notice  of  the  facts,  and  besides,  the  notice  required  by 
Article  1236  is  not  such  as  the  law  provides  for  in  special  pro- 
ceedings of  the  character  in  question,  and  could  be  resorted  to,  if 
at  all,  only  in  the  absence  of  a  specific  statute  providing  notice 
for  such  case. 

Under  Sayles  Ann.  Civ.  St.  1897,  Art.  5232o,  requiring  notice 
of  suits  to  collect  delinquent  taxes  to  be  "directed  to  all  parties 
owning  or  having  or  claiming  any  interest"  in  the  land  in  ques- 


Service.  233 

tion,  etc.,  a  notice  "to  unknown  owners,  and  to  all  persons  owning 
or  having,  or  claiming  any  interest,"  etc.,  is  sufficient,  at  least  on 
collateral  attack,  even  though  immediately  preceding  that  para- 
graph are  recitals  not  required  by  the  statute,  for  they  may  be 
treated  as  surplusage. 

Under  Sayles  Ann.  Civ.  St.  1897,  Art.  5232o,  providing  that, 
upon  affidavit  setting  out  that  the  owner  of  land  reported  sold  or 
returned  delinquent  for  taxes  is  unknown  to  the  attorney  of  the 
state,  notice  of  tax  foreclosure  suit  may  be  given  by  publication, 
an  affidavit  by  the  county  attorney  that  the  statements  are  true 
to  the  best  of  his  knowledge  and  belief  is  sufficient. 

A  notice  to  unknown  owners  of  tax  foreclosure  suit,  specifying 
only  the  aggregate  sum  due  for  state  and  county  taxes,  is  suffi- 
cient on  collateral  attack,  where  the  several  sums  due  the  county 
and  state  are  set  forth  in  exhibits  attached  to  the  petition,  not- 
withstanding Sayles  Civ.  Ann.  St.  1897,  Art.  5232o,  prescribing 
the  form  of  notice,  which  in  that  respect  is,  "Which  said  land  is 

delinquent  for  taxes  for  the  following  amounts:    $ for 

state  taxes,  and  $ for  county  taxes,"  for  the  owners  were 

deprived  of  no  substantial  right  by  reason  of  the  omission  to  state 
separately  the  sums  due,  and  the  omission  is  at  most  a  defect  that 
could  only  be  taken  advantage  of  by  motion  of  quash,  bill  of 
review,  or  some  direct  proceeding  to  vacate  the  judgment.  Young 
V.  Jackson,  110  S.  W.  74. 

§  362.     Citation  in  tax  cases  different. 

In  Article  5232o,  Sayles  Ann.  Civ.  St.  1897,  it  is  apparent  from 
the  language  of  said  article  that  it  was  the  intention  of  the  legis- 
lature to  prescribe  a  form  of  citation  or  notice  in  suits  by  publi- 
cation against  non-residents  or  unknown  owners  for  taxes,  dif- 
ferent from  the  ordinary  citation,  and  peculiar  to  the  class  of 
cases  mentioned.  The  object  in  the  enactment  was  to  formulate 
a  guide  for  citing  the  non-resident  or  unknown  delinquent  tax- 
payer and  in  testing  the  corrections  of  a  citation  in  such  cases 
that  law  alone  must  be  looked  to.  Kenson  v.  Gage,  79  S.  W.  605, 
34  Tex.  Civ.  App.  547. 

Sayles  Ann.  Civ.  St.  1897,  Art.  1236,  authorizing  the  service 
of  process  in  an  action  against  unknown  heirs,  by  publication 
once  each  week  for  eight  successive  weeks,  governs  in  an  action 
under  the  delinquent  taxes,  for  Art.  5232g  provides  that  in  such 


234  Taxation  in  Texas. 

actions  the  proper  persons  shall  be  made  parties  defendant  and 
shall  be  served  with  process  as  provided  by  law  for  suits  of  like 
character.  Williams  et  al.  v.  Yoimg  et  al.,  90  S.  W.  940,  41  Tex. 
Civ.  App.  212. 

§  363.     Date  of  filing. 

Under  Sayles  Ann.  Civ.  St.  1897,  Art.  5232o,  providing  a  form 
of  citation  to  be  published  in  suits  for  taxes  against  non-residents 
or  unknown  land  owners  in  which  the  date  of  filing  the  suit  is 
not  required  to  be  given,  the  failure  to  include  such  date  in  the 
citation  does  not  vitiate  it.  Kenson  v.  Gage,  79  S.  W.  605,  34 
Tex.  Civ.  App.  547. 

§  364.     Act  1897  repealed  all  other  laws. 

Since  Acts  1897,  p.  138,  Chap.  103,  Sec.  15,  describing  the 
requisites  of  notice  in  tax  suits,  repealing  all  conflicting  laws, 
and  had  no  saving  clause  with  respect  to  suits  then  pending,  a 
notice  issued  prior  to  the  time  such  act  took  effect  and  published 
subsequent  thereto  should  have  complied  herewith.  Babcock  v. 
Wolifarth  et  al,  80  S.  W.  642,  35  Tex.  Civ.  App.  512. 

§  365.     Where  one  is  in  possession  and  title  of  record. 

When  the  owner  of  land  is  in  actual  occupation  thereof  through 
agents  or  tenants,  and  his  title  is  of  record,  the  state  and  its  offi- 
cers are  charged  with  the  knowledge  of  his  possession,  and  can 
not,  without  actual  notice  to  him,  deprive  him  of  title  by  a  suit 
under  Sayles  Ann.  Civ.  St.  1897,  Art.  5232o,  authorizing  the  fore- 
closure of  delinquent  tax  liens  on  land  owned  by  non-residents, 
or  by  unknown  owner  by  suit  instituted  by  publication  of  sum- 
mons against  all  persons  owning  or  having  or  claiming  any  in- 
terest in  the  lands.  Bingham  et  al.  v.  Matthews,  86  S.  W.  781, 
39  Tex.  Civ.  App.  41 ;  Peareson  v.  Branch,  87  S.  W.  222 ;  Holly- 
wood V.  Wellhausen,  68  S.  W.  329,  4  Tex.  965. 

§  366.     Appointment  of  attorney  and  statement  of  facts. 

In  an  action  against  a  non-resident  for  state  and  county  taxes 
cited  by  publication,  failed  to  comply  with  Article  1346,  Sayles 
Ann.  Civ.  St.  1897,  providing  that  where  service  of  process  has 
been  made  by  publication  and  no  answer  has  been  filed,  the  court 
shall  appoint  an  attorney  to  defend  the  suit,  and  judgment  shall 
be  rendered  as  in  other  cases,  but  in  every  such  case  a  statement 
of  the  evidence,  approved  by  the  judge,  shall  be  filed  with  the 


Service.  235 

papers  of  the  cause  as  part  of  the  record  thereof.    Garvey  v.  State, 
88  S.  W.  873 ;  Byrnes  v.  Sampson,  74  Tex.  79,  11  S.  W.  1073. 

§  367.     Proof  of  publication. 

Where  the  statute  prescribing  the  notice  required  for  tax  fore- 
closure does  not  require  that  it  be  directed  to  the  sheriff  or  con- 
stable, as  it  ordinarily  does,  but  seems  to  negative  the  idea  that 
it  should  be  placed  in  the  hands  of  such  officer  for  execution,  and 
no  rnethod  is  prescribed  for  proving  the  fact  of  its  execution, 
whatever  is  sufficient  to  inform  the  court  of  the  fact  of  publica- 
tion would,  when  the  court  is  so  informed,  authorize  it  to  pro- 
ceed to  judgment,  and  it  should  be  presumed  on  collateral  attack 
in  favor  of  the  judgment  that  the  court  found  the  notice  was 
published  as  required.  Hence  an  affidavit  of  publication  made 
by  the  publisher  of  a  newspaper,  and  in  other  respects  proper,  is 
sufficient,  especially  in  view  of  Rev.  St.  1895,  Art.  1457,  author- 
izing the  affidavit  of  a  publisher  of  a  newspaper  to  be  taken  as 
evidence  of  his  serving  a  notice  in  the  manner  prescribed  by 
statute. 

Where  the  officer  who  takes  a  publisher's  affidavit  of  publi- 
cation of  a  notice  of  foreclosure  proceedings  is  the  clerk  of  the 
court  which  tries  the  case,  and  he  is  authorized  to  administer 
oaths,  and  the  proceedings  resulted  in  sale  under  the  notice,  on 
collateral  attack  it  will  be  presumed  that  the  trial  judge  knew 
his  clerk's  official  signature,  and  was  satisfied  that  the  affidavit 
was  made  and  the  notice  published  as  stated,  even  though  no  seal 
is  affixed  to  the  jurat,  and,  in  any  event,  the  affidavit  was  not 
void  because  of  the  officer's  failure  to  affix  his  seal  to  the  jurat, 
for  it  could  have  been  amended  by  leave  of  court  by  afterwards 
affixing  the  impress  of  the  seal.    Young  v.  Jackson,  110  S.  W.  74. 

§  368.     Void  service  against  unknown  owner. 

In  proceedings  to  sell  land  of  an  unknown  owner  for  unpaid 
taxes,  the  citation  by  publication  was  addressed  as  follows :  "To 
the  Sheriff  or  any  Constable  of  El  Paso  County — Greeting."  It 
commanded  the  sheriff  that  by  making  publication  thereof  he 
summon  the  owner  of  the  property.  Service  of  the  citation  was 
made  by  the  sheriff  by  publication  in  a  county  newspaper  once 
per  week  for  four  consecutive  weeks.  Held,  that  the  citation 
was  void,  and  the  judgment,  being  silent  as  to  what  service  was 
had  upon  the  unknown  owner,  was  based  upon  the  void  citation, 
and  was  also  void.    Bowden  v.  Patterson,  111  S.  W.  182. 


236  Taxation  in  Texas. 

§  369.     Must  describe  land. 

Under  Sayles  Ann.  Civ.  St.  1897,  Art.  5232o,  providing  that 
the  notice  in  tax  suits  shall  be  directed  to  all  persons  claiming 
any  interest  in  the  land  so  described  as  to  identify  it,  a  notice 
in  a  tax  suit  for  taxes  due  on  the  "A.  Netherly"  survey  issued 
to  the  unknown  owners  of  the  "A.  Wetherby"  survey,  and  pub- 
lished as  directed  to  the  unknown  owners  of  the  "A.  Weatherby" 
survey,  is  fatally  defective.    Harris  v.  Hill,  117  S.  W.  907. 

§  370.     May  be  addressed  directly  to  defendants. 

The  citation  served  by  publication  in  an  action  for  delinquent 
state  and  county  taxes  may  be  addressed  to  defendants  and  it 
need  not  be  addressed  to  any  officer  nor  require  any  officer  to 
make  return  thereof.    Gibbs  v.  Scales,  118  S.  W.  188. 

§  371.     Citation   against   unknown   owners   governed   by   the 
Special  Statutes. 

A  proceeding  against  the  unknown  owner  of  land  to  foreclose 
a  delinquent  tax  assessment  as  authorized  by  Laws  1897,  p.  138, 
Chap.  103,  Sec.  15,  is  a  special  proceeding  in  which  the  citation 
need  not  state  the  file  number  of  the  proceeding,  as  required  by 
Rev.  St.  1895,  Art.  1214,  regulating  citations  in  general ;  the 
proceeding  being  governed  by  the  special  rather  than  the  general 
law.    "Unknotmi  Owner  v.  Staie,  118  S.  W.  803. 

§  372.     Proper  affidavit  must  be  filed  or  judgnient  is  invalid. 

The  findings  show  that  the  judgment  of  foreclosure  rendered 
in  the  tax  suit  contained  no  recital  of  notice  to,  or  service  upon, 
the  defendant  in  that  suit,  and  that  the  petition,  although  sworn 
to  by  the  county  attorney  representing  the  state,  contained  no  al- 
legation that  the  owner  was  a  non-resident  of  the  state,  or  that 
the  owner  was  unknown  and  could  not  be  ascertained  by  inquiry. 
Supplementing  the  findings  of  the  trial  court,  we  further  find 
that  the  original  petition  in  the  foreclosure  suit  contained  the 
allegation  "that  the  defendant's  place  of  residence  is  unknown 
to  plaintiff."  The  question  first  arises,  does  the  failure  to  file  the 
affidavit  for  a  service  by  publication,  as  required  by  Article 
5232o,  Sayles  Rev.  Civ.  St.,  affect  the  jurisdiction  of  the  court  to 
proceed  to  judgment  in  the  case?  That  article,  so  far  as  perti- 
nent to  the  inquiry,  reads:  "Wherever  the  owner  or  owners  of 
any  lands  or  lots  returned  delinquent  or  reported  sold  to  the 


Service.  237 

state,  or  that  miay  hereafter  be  reported  sold  or  returned  deHn- 
quent  for  the  taxes  due  thereon  for  any  year  or  number  of  years, 
are  non-residents  of  the  state,  or  the  name  of  the  owner  or  owners 
of  said  land  or  lots  be  unknown,  then  upon  affidavit  setting  out 
that  the  owner  or  owners  are  non-residents  or  that  the  owner  or 
owners  are  unknown  to  the  attorney  for  the  state  and  after  in- 
quiry can  not  be  ascertained,  said  parties  shall  be  cited  and 
made  parties  defendant  by  notice,"  etc.  We  think  it  is  to  be 
understood  from  this  language  that  as  a  condition  precedent  to 
the  court's  power  to  inquire  into  the  merits  of  the  action  the  affi- 
davit provided  for  must  have  been  filed.  In  other  words,  a  cita- 
tion by  publication  is  not  authorized  except  upon  the  filing  of  such 
affidavit,  and  of  course,  a  judgment  without  citation  may  be 
shown  to  be  invalid  if  properly  attacked.  The  following  authori- 
ties appear  to  treat  such  omission  as  a  jurisdictional  defect: 
Hardy  v.  Beaty,  84  Tex.  562,  19  S.  W.  778,  31  Am.  St.  80;  la^ns 
V.  Root  (Tex.  Civ.  App.),  55  S.  W.  412;  Pemioyer  v.  Neif,  95 
U.  S.  714,  24  L.  Ed.  565;  Coom  v.  Throckmorton,  25  Ark.  60; 
Allen  V.  Smith,  25  Ark.  495 ;  People  v.  Pearson,  76  Cal.  400,  18 
Pac.  424;  Bardsley  v.  Nines,  33  Iowa,  157;  Jeffrey's  Heirs  v. 
Hand's  Heirs,  Z7  Ky.  89 ;  Murdoch  v.  Hillyer,  45  Mo.  App.  287 ; 
Gilmore  v.  Lampman  (Minn.),  90  N.  W.  1113,  91  Am.  St.  376; 
Beckett  V.  Cuenin  (Colo.),  25  Pac.  167,  22  Am.  St.  399.  Stone- 
m<tn  V.  Bilby,  96  S.  W.  52,  43  Tex.  Civ.  App.  293. 

§  373.     May  be  collaterally  attacked  when. 

This  brings  us  to  a  consideration  of  the  further  question  wheth- 
er or  not  the  failure  to  file  a  proper  affidavit  in  the  original  tax 
foreclosure  suit  can  be  shown  in  this,  since  the  attack  is  collat- 
eral. We  are  not  unmindful  of  the  rule  laid  down  in  the  Texas 
cases  above  cited,  to  the  eflfect  that  on  collateral  attack  the  pre- 
sumption is  that  a  sufficient  affidavit  was  filed  to  authorize  the  is- 
suance of  the  citation  by  publication.  But  we  understand  the 
rule  to  be  that  this  is  a  rebuttable  presumption  unless  rebutting 
it  involves  in  some  way  the  contradiction  of  the  record.  As  be- 
fore shown,  the  judgment  does  not  recite  the  filing  of  an  affidavit 
or  service  upon  the  defendant  in  the  action,  but,  on  the  contrary, 
the  record  does  affirmatively  show  an  insufficient  affidavit  (the 
sworn  petition) ,  and  in  such  case  the  inference  is  that  the  service 
was  had  upon  the  defective  affidavit,  the  only  one  in  the  record, 
and  the  presumption  above  referred  to  is  therefore  overcome. 


238  Taxation  IN  Texas. 

This  we  understand  to  be  the  appHcation  of  the  exact  rule  an- 
nounced by  us  in  the  cases  of  Earnest  v.  Closer,  74  S.  W.  605,  7 
Tex.  712,  and  Babcock  v.  Wolifarth,  80  S.  W.  642,  in 
each  of  which  cases  a  writ  of  error  was  refused.  Stonenum,  v. 
Bilby,  96  S.  W.  52,  43  Tex.  Civ.  App.  293. 

§  374.     When  good  against  unknown  owners. 

Under  Sayles  Civ.  St.  1897,  Art.  5232o,  prescribing  the  requi- 
sites of  citations  in  suits  to  recover  delinquent  taxes  against  un- 
known owners  of  land,  where  a  citation  departed  from  the  ex- 
press terms  of  the  statute  by  having  the  notice  to  the  unknown 
owner  preceded  by  a  direction  to  the  sherifif  or  constable  to  serve 
it  by  publication,  and  by  following  the  notice  with  a  command 
for  a  return  showing  how  the  writ  was  served,  the  notice  or 
citation  to  the  owner  was  not  invalidated;  the  commands  to  the 
officer  by  separate  paragraphs,  made  entirely  distinct  from  the  no- 
tice to  the  owner,  being  not  as  a  matter  of  law  misleading  to  the 
owner.    State  v.  Unknown  Oztmer,  103  S.  W.  1116. 

§  375.     Liability  of  County  to  pay  for  citation  by  publication. 

General  Laws,  25th  Leg.,  p.  138,  Chap.  103  (delinquent  tax 
act),  Sec.  15,  declaring  that  when  the  owner  of  land  subject  to 
sale  for  delinquent  taxes  is  a  non-resident  or  his  name  is  un- 
known, such  owner  shall  be  cited  and  made  a  party  by  a  notice 
which  shall  be  published  in  some  newspaper  in  the  county  or  in 
the  adjoining  county,  for  which  publication  a  certain  fee  may  be 
attached,  gives  the  county  no  authority  to  contract  to  pay  the 
cost  of  publication  of  the  notice.  County  commissioners'  courts 
have  no  power  or  authority  except  such  as  is  conferred  upon 
them  by  the  constitution  or  statutes  of  the  state,  and  no  such  au- 
thority is  given,  and  since  the  commissioners'  court  of  the  county 
has  no  power  to  contract  to  pay  the  cost  of  publication  of  a  notice 
to  non-resident  taxpayers,  it  can  not  ratify  such  a  contract  when 
made  by  the  county  attorney.  Baldwin  v.  Travis  Co.,  88  S.  W. 
480,  40  Tex.  Civ.  App.  149 ;  Bland  v.  Orr,  90  Tex.  492,  39  S.  W. 
558;  Mills  Co.  v.  Lampasas  Co.,  90  Tex.  606,  40  S.  W.  403; 
Bryan  v.  Page,  51  Tex.  532;  Nichols  v.  State,  11  Tex.  Civ.  App. 
327,  32  S.  W.  452 ;  Boydston  v.  Rockwall,  86  Tex.  234. 


CHAPTER  XVIII. 


EVIDENCE. 


Sec.  Sec. 

376.  Lists  and  books  prima  facie       399. 

evidence.  400. 

377.  Lists — Assessments    rolls     or 

books  prima  facie  evidence.       401. 

378.  Inventories  as  evidence. 

379.  Plats  and  maps  as  evidence.      402. 

380.  Copies   of   records   of  public 

ofllcers    and     courts    to   be      403. 
prima  facie. 

381.  Tax  deed  of  city  prima  facie 

evidence.  404. 

382.  Delinquent  tax  list. 

383.  Authority  to  make  sale  must      405. 

be  shown  before  tax   deed      406. 
can    be   admissible    in    evi- 
dence. 407. 

384.  Assessment  roll  not  admissi-      408. 

ble — ^When. 

385.  Admissions — Offer     of     com- 

promise. 409. 

386.  Prima  facie  tax  rolls. 

387.  City  ordinance— Admissibility      410. 

of  pamphlet. 

388.  Sworn  pleadings   not  offered      411. 

by  general  denial — Proof. 

389.  Sufficiency.  412. 

390.  Admission  in  record. 

391.  Burden  of  proof.  413. 

392.  Tax    list     alone     not    prima 

facie  evidence.  414. 

393.  Tax    deed    not    evidence    of 

title— When.  415. 

394.  Tax  deeds  and  rolls  not  evi- 

dence of  levy. 

395.  Admission  in  pleadings.  416. 

396.  To    show    valuation — Assess- 

ment. 417. 

397.  Tax    deed    conclusive    as    to 

facts  stated  therein. 

398.  Sale  for  larger  amount  void.      418. 


Admission   in  pleadings. 

Presumption  of  legality  of 
levy. 

Not  necessary  to  show  title 
—When. 

Levy,  prima  facie  evidence  of 
facts. 

Deed  of  tax  collector  at  sum- 
mary sale  not  evidence  of 
title  when. 

Parol  testimony  where  tax 
rolls  are  lost 

Admission. 

Competency,  sufficiency  of  de- 
scription. 

List  alone  not  evidence. 

In  prosecution  for  occupation 
tax  state  must  show 
amount  of  levy. 

Tax  recepts  evidence  of  ren- 
dition. 

Assessment  lacking  affidavit 
of  assessor  not  admissible. 

Assessment  and  demand  must 
be  shown. 

Payment  of  taxes  as  evidence 
of  partition. 

Allowed  to  prove  notations 
on  roll. 

Copy  of  delinquent  tax  rec- 
ord admissible. 

Owners  rendition  admissible 
to  show  value  of  property 
in  damage  suit. 

Payment  of  taxes  to  show 
extent  of  claim. 

Payment  of  city  tax  no  evi- 
dence of  payment  of  State 
and  county  tax. 

Tax  rolls. 


240  Taxation  in  Texas. 

§  376.     Lists  and  books  prima  facie  evidence. 

The  list  of  all  taxes  due  on  property  since  1885  when  prepared 
in  accordance  with  the  provisions  of  the  Act  of  1897,  p.  132,  Sec. 
3,  by  the  tax  collector  when  certified  to  the  county  judge,  and 
assessment  rolls  and  books  on  file  in  the  tax  collector's  office  shall 
be  prima  facie  evidence  that  all  the  requirements  of  the  law 
have  been  complied  with  by  the  officers  charged  with  any  duty 
thereunder,  as  to  the  regularity  of  listing,  assessing  and  levying 
of  all  taxes  therein  mentioned,  and  reporting  as  delinquent  or 
sold  to  the  state  any  real  estate  whatsoever  and  that  the  amount 
alleged  against  said  real  estate  is  a  true  and  correct  charge ;  and 
in  cases  in  which  the  description  of  the  property  in  said  list  or 
assessment  rolls  or  books,  is  not  sufficient  to  properly  identify 
the  same,  and  of  which  property  there  is  a  sufficient  description 
in  the  inventories  in  assessor's  office,  then  said  inventories  shall 
be  admissible  as  evidence  of  the  description  of  said  property. 
Acts  1897,  p.  132,  Sec.  3 ;  Sayles  R.  S.,  Art.  5232c. 

§  377.     Lists — Assesment  rolls  or  books  prima  facie  evidence. 

After  the  annual  delinquent  tax  list  provided  for  in  Sec.  10  of 
the  Delinquent  Tax  Act  of  1897  has  been  prepared  the  same  sec- 
tion of  the  same  act  provides  that,  "when  list  of  lands  and  lots, 
delinquent  for  the  preceding  year  only,  is  connected  as  provided 
for  in  Section  5  of  this  act,  and,  after  such  advertisement,  suit 
shall  be  instituted  against  delinquents  for  all  taxes  and  penalties 
due,  in  the  district  court,  as  above  provided ;  and  such  list,  as  fur- 
nished by  the  tax  collector,  and  corrected  by  the  commissioners' 
court,  and  the  assessment  rolls  or  books  on  file  in  the  collector's 
office  or  either  said  list  or  assessment  rolls  or  books  shall  be  prima 
facie  evidence  that  all  the  requirements  of  the  law  have  been 
complied  with  by  the  officers  or  courts  charged  'with  any  duty 
thereunder  as  to  the  regularity  of  listing,  assessing,  levying  all 
taxes  therein  mentioned,  and  reporting  as  delinquent  any  real  es- 
tate, is  a  true  and  correct  charge.  Act  of  1897,  p.  137,  Sec.  10. 

§  378.     Inventories  as  evidence. 

Where  the  delinquent  tax  lists,  assessment  rolls  or  books  in 
tax  collector's  office  is  not  sufficient  to  identify  property  on  which 
the  tax  is  due  and  there  is  a  sufficient  description  in  the  inven- 
tories of  the  assessor's  office,  then  said  inventories  shall  be  ad- 
missible as  evidence  of  the  description  of  said  property.  Act  of 
1897,  p.  133,  Sec.  3;  p.  137,  Sec.  10. 


Evidence.  241 

§  379.     Plats  and  maps  as  evidence. 

Under  the  Act  of  1897,  p.  139,  Sec.  17,  it  is  provided  that  in 
counties  in  which  the  subdivisions  of  surveys  are  not  regularly 
numbered,  and  in  cities  or  towns  in  which  the  blocks  or  subdi- 
visions are  not  numbered  or  are  so  irregularly  numbered  as  to 
make  it  difficult  or  impossible  for  the  assessor  to  list  the  same, 
the  commissioners'  court  of  such  counties  may  have  all  the  blocks 
and  subdivisions  of  surveys  platted  and  numbered  so  as  to  identify 
each  lot  or  tract,  and  to  furnish  the  assessor  with  maps  showing 
such  numbering ;  and  an  assessment  of  any  property  by  such  num- 
bering on  said  maps  shall  be  sufficient  description  thereof  for  all 
purposes,  and  such  maps  or  a  certified  copy  of  the  same  or  any 
part  thereof  shall  be  admissible  as  evidence  in  all  courts ;  pro- 
vided that  the  cost  of  making  said  survey  and  plats  shall  be  de- 
frayed by  the  county  in  which  said  property  is  situated  and  of 
which  the  said  commissioners'  court  ordered  the  said  surveys  and 
plats  made ;  provided  that  the  cost  of  any  map  of  a  town  or  city 
shall  be  paid  by  such  town  or  city  when  ordered  by  the  town  or 
city.    Sayles  R.  S.,  Art.  5232q. 

§  380.     Copies  of  records  of  public  ofBcers  and  courts  to  be 
prima  facie  evidence. 

Copies  of  the  records  of  all  public  officers  and  courts  of  this 
state,  certified  to  under  the  hand  and  seal  (if  there  be  one)  of 
the  lawful  possessor  of  such  records,  shall  be  admitted  as  evi- 
dence in  all  cases  where  the  records  themselves  would  be  admis- 
sible; translated  copies  of  all  records  in  the  land  office,  certified 
to  under  the  hand  of  the  translator,  and  the  commissioner  of  the 
general  land  office,  attested  with  the  seal  of  said  office,  shall  be 
prima  facie  evidence  in  all  cases  where  the  original  records  would 
be  evidence.    Art.  2306,  R.  S. 

§  381.     Tax  deed  of  city  prima  facie  evidence. 

The  deed  of  the  assessor  and  collector  or  the  assessment  rolls 
can  be  made  prima  facie  evidence  by  charter,  and  where  it  has 
been  so  done  in  charter,  is  prima  facie  evidence  that  the  tax  is 
due,  and  that  all  the  prerequisites  of  the  law  have  been  complied 
with.  City  of  Dallas  v.  Western  Electric  Co.,  83  Tex.  243 ;  Texas 
Scnnngs  and  Real  Estate  Investment  Assn.  v.  Pierre  Heirs,  31  S. 
W.  426,  10  Tex.  Civ.  App.  453 ;  Taylor  v.  Boyd,  63  Tex.  542 ; 
Kelly  V.  Mullin,  26  Tex.  55;  Pillow  v.  Roberts,  13  How.  472; 
16 


242  Taxation  in  Texas. 

City  of  Dallas  v.  Young,  28  S.  W.  1036;  Texas  Trans.  Co.  v. 
Boyd,  67  Tex.  153 ;  City  of  Louisville  v.  Johnson,  24  S.  W.  875 ; 
DeTreville  v.  Small,  98  U.  S.  517;  Burbank  v.  People,  90  111.  554. 

§  382.     Delinquent  tax  list. 

A  duly  certified  delinquent  tax  list  with  the  order  of  the  comp- 
troller for  suit  thereon,  would  afford  prima  facie'  evidence  of  the 
right  of  the  state  to  judgment  against  defendant  for  the  tax  as- 
sessed. The  statutory  provisions  for  the  report  of  delinquency 
and  suit  thereon,  being,  however,  merely  directory,  the  facts  to  be 
established  by  it  may  be  proved  by  other  appropriate  and  satis- 
factory evidence.  Clegg  v.  State,  42  Tex.  612 ;  Clegg  v.  County 
of  Galveston,  1  App.  C,  Sec.  60. 

The  delinquent  tax  lists,  as  furnished  by  the  tax  collector  under 
the  provisions  of  *the  Act  of  1897  and  corrected  by  the  commis- 
sioners' court,  and  the  assessment  rolls  or  books  on  file  in  the  col- 
lector's office,  or  either  said  list  or  assessment  rolls  or  books  shall 
be  prima  facie  evidence  that  all  the  requirements  of  the  law  have 
been  complied  with  by  the  officers  or  courts  charged  with  any 
duty  thereunder,  as  to  the  regularity  of  listing,  assessing,  levy- 
ing all  taxes  therein  mentioned  and  reporting  as  delinquent  any 
real  estate  whatsoever. 

§  383.     Authority  to  make  sale  must  be  shown  before  tax  deed 
can  be  admissible  in  evidence. 

In  the  case  of  Robson  v.  Osborn  (13  Tex.  298),  the  tax  col- 
lector's deed  was  offered  in  evidence,  and  excluded  by  the  court 
below,  on  the  ground  that  it  was  necessary,  before  the  deed  could 
be  received  as  evidence  of  title,  for  the  party  offering  it  to  prove 
thie  authority  of  the  assessor  and  collector  to  make  the  sale.  On 
appeal,  the  judgment  was  affirmed ;  and  it  was  held,  that  where  a 
party  claimed  under  the  tax  collector's  deed,  under  the  Act  of 
1848,  it  devolves  on  him  to  prove  the  performance  by  the  assessor 
and  collector  of  those  acts,  which  are  conditions  precedent  to  the 
power  to  sell ;  that  though  the  statute  makes  the  deed  prima  facie 
evidence  of  the  regularity  of  the  sale,  it  does  not  make  it  evi- 
dence of  the  power  to  sell ;  and  that  it  devolved  on  the  purchaser 
to  prove  the  facts,  which  were  the  necessary  prerequisites  to  the 
exercise  of  the  power.  There  was  no  such  proof  in  the  present 
case ;  and,  consequently,  the  tax  collector's  deed  can  be  of  no  avail 
to  the  defendant  as  evidence  of  title  to  the  land  in  question.    The 


Evidence.  243 

rulings  of  the  court  upon  it  are  therefore  immaterial,  since  they 
resulted  in  a  right  legal  conclusion.  Devine  v.  McCulloch,  15 
Tex.  491. 

§  384.  •  Assessment  roll  not  admissible  when. 

In  an  action  of  trespass  to  try  title,  where  the  defendant  re- 
lied upon  a  tax  sale,  the  assessment  roll  failed  to  show  the  num- 
bers of  the  surveys  of  the  lands.  The  abstract  numbers  were 
given,  but  the  patents  of  the  original  owners  introduced  in  evi- 
dence showed  the  same  numbers  to  be  the  numbers  of  the  surveys. 
Held,  that,  under  General  Laws  Tex.  1876,  p.  269,  Sec.  14,  relat- 
ing to  assessments,  and  providing  that  the  assessment  roll  must 
show  the  abstract  number  and  the  number  of  the  survey,  the  roll 
offered  in  evidence  was  inadmissible.  Gulf,  C.  &  S.  F.  Ry.  v. 
Poindexter,  7  S.  W.  316,  70  Tex.  98. 

§  385.     Admissions — Offer  of  compromise. 

Where  a  settlement  between  a  city  and  a  taxpayer  of  conflicting 
claims  as  to  the  amount  of  taxes  due  was  void  because  the  city, 
without  authority  so  to  do,  accepted  certain  paving  certificates  in 
payment  of  the  taxes,  the  agreement  to  pay  did  not  amount  to  an 
admission  by  the  taxpayer  that  she  owed  the  amount  of  the  cer- 
tificates. City  of  Houston  v.  Stewart,  90  S.  W.  52,  40  Tex.  Civ. 
App  499;  Railway  Co.  v.  Ragsdale,  67  Tex.  27,  2  S.  W.  515. 

§  386.     Prima  facie  tax  rolls. 

Und^  the  provision  of  the  city  charter  making  the  tax  rolls, 
or  a  certified  statement  from  said  rolls,  signed  by  the  city  as- 
sessor, prima  facie  evidence  "that  the  tax  on  the  property  is  due, 
and  that  the  facts  stated  therein  are  true  and  that  all  prerequisites 
required  by  law  pertaining  to  the  levying  and  assessing  of  the  tax 
on  property  on  which  the  suit  is  brought  for  the  taxes  due  have 
been  complied  with,"  the  city  was  not  required  to  do  more  than 
introduce  the  tax  rolls ;  and  unless  the  defendant  could  then  show 
said  rolls  were  illegally  prepared  or  should  show  that  the  pre- 
requisites of  the  levy  and  the  assessment  of  the  taxes  had  not 
been  complied  with,  plaintiff's  case  would  be  made  out  for  the 
taxes  shown  to  be  due  by  said  rolls.  City  of  Houston  v.  Stewart, 
90  S.  W.  55,  40  Tex.  Civ.  App.  499. 

§  387.     City  ordinances — Admissibility  of  pamphlet. 

In  an  action  by  a  city  to  recover  taxes,  printed  pamphlets,  one 
of  which  bore  upon  the  cover  the  indorsement,  "The  City  Charter 


244  Taxation  in  Texas. 

of  the  City  of  Houston,  together  with  the  Revised  Code  of  Or- 
dinances Prepared  by  Direction  of  the  City  Council,  and  Adopted 
by  Resolution  on  the  27th  Day  of  December,  1886,"  and  the  other 
the  endorsement,  "Revised  Code  of  Ordinances  of  the  City  of 
Houston,  Harris  County,  Texas,  Compiled  and  Published  by  Or- 
der of  the  City  Council,  in  Compliance  with  Section  34  of  the 
City  Charter  Adopted  by  the  City  Council  by  Ordinance  Adopted 
November  11,  1897,"  were  admissible  in  evidence,  as  they  pur- 
ported to  have  been  published  by  authority  of  the  city  council. 
City  of  Houston  v.  Stewart,  90  S.  W.  55,  40  Tex.  Civ.  App.  499. 

§  388.     Sv^^orn  pleadings  not  offered  by  general  denial — Proof. 

The  defendant  claims  that  his  general  denial  prevents  the  tak- 
ing of  the  answer  as  true,  and  that  there  was  no  proof  showing 
that  the  state  had  title  in  the  land,  or  that  the  defendant  himself 
was  claiming  title  thereto.  The  law  under  which  this  proceeding 
is  had  required  the  pleadings  of  both  parties  to  be  sworn  to.  A 
general  denial  is  not  applicable  to  the  case.  It  is  similar  to  the 
practice  in  case  of  mandamus,  where  it  is  held  that  because  a 
defendant  is  required  to  traverse  the  allegations  of  the  plaintiff, 
or  to  confess  and  avoid  them,  a  general  denial  is  no  answer,  and 
will  not  prevent  judgment  being  taken  upon  the  petition  and  the 
answer.  It  was  unnecessary  for  the  state  to  prove  the  facts  al- 
leged and  sworn  to  by  the  defendant.  League  v.  State,  S7  S.  W. 
35,  93  Tex.  553 ;  Ogden  v.  Bosse,  86  Tex.  344,  24  S.  W.  798. 

§389.    iSufficiency. 

Proof  that  ordinances  authorizing  issuance  of  city  bonds  con- 
tained no  provision  for  interest  and  a  sinking  fund,  does  not  prove 
that  it  was  made  when  the  bonds  were  sold.  Wright  v.  City  of 
San  Antonio,  50  S.  W.  406. 

§  390.     Admissibility  in  record. 

An  admission  in  the  statement  of  facts  in  afi  action  to  fore- 
close delinquent  taxes,  that  the  "defendant  had  notice  of  said 
raise  in  valuation"  will  in  the  absence  of  anything  to  the  contrary 
be  taken  to  mean  that  he  had  had  due  notice  as  provided  by  law. 
Master  son  v.  State,  17  Tex.  Civ.  App.  94. 

§  391.    Burden  of  proof. 

The  burden  of  proving  that  special  taxes  sought  to  be  recov- 
ered on  a  bonded  debt  of  a  city  were  illegal,  in  that,  at  the  time 
the  debts  were  created  for  which  the  bonds  were  issued,  no  pro- 


Evidence.  245 

vision  was  made  by  the  city  to  pay  the  interest,  and  to  create  a 
sinking  fund  therefor,  as  required  by  the  constitution,  is  on  the 
party  making  such  defense,  as  the  presumption  is  that  the  city 
council,  in  levying  the  taxes,  acted  lawfully. 

It  is  not  sufficient  for  one  attacking  the  validity  of  the  tax  to 
show  that  none  of  the  ordinances  authorizing  the  issuance  of  the 
bonds  contained  provisions  for  levying  and  collecting  a  sufficient 
tax  to  pay  the  interest  thereon,  or  provided  for  a  sinking  fund,  as 
it  must  also  be  proved  that  such  provisions  were  not  made  at  the 
time  such  bonded  -debt  was  created.  Berry  v.  City  of  San  An- 
tonio, 46  S.  W.  273,  92  Tex.  319. 

§  392.     Tax  list  alone  not  prima  facie  evidence. 

A  suit  for  taxes  can  not  be  maintained  without  proof  of  legal 
assessment;  and  under  Rev.  St.,  Art.  5232c,  providing  for  the 
tax  collector  making  out  a  list  of  lands  sold  to  the  state  for  taxes, 
or  on  which  delinquent  taxes  are  due,  and  declaring  that  the  list, 
so  prepared,  "when  certified  to  by  the  county  judge,  and  assess- 
ment rolls  and  books  on  file  in  the  collector's  office,  shall  be  prima 
facie  evidence,"  such  delinquent  list  is  not,  alone,  prima  facie 
evidence  of  such  an  assessment.    Rouse  v.  State,  54  S.  W.  32. 

§  393.     Tax  deed  not  evidence  of  title  when. 

Tax  deeds  are  not  evidence  of  title  without  proof  of  compli- 
ance with  the  prerequisites  of  the  law.  Boyd  v.  Miller,  54  S.  W. 
411,  22  Tex.  Civ.  App.  165. 

§  394.     Tax  deeds  and  rolls  not  evidence  of  levy. 

A  deed  of  city  real  estate,  issued  by  a  miunicipal  corporation  in 
pursuance  of  a  sale  of  the  property  by  the  city  tax  collector  for 
taxes  due  the  city,  is  not  prima  facie  evidence  that  the  tax  had 
been  levied  according  to  law.  Such  levy  must  be  proved  by  proof 
of  the  ordinance  passed  by  the  city  council  making  the  levy 

Rev.  Civ.  St.  1895,  Art.  518,  providing  what  facts  shall  be  es- 
tablished prima  facie  by  the  admission  in  evidence  of  a  tax  deed 
issued  by  a  municipal  corporation,  and  what  facts  shall  be  con- 
clusively established  thereby,  does  not  include  any  provision  as 
to  the  levy  of  taxes  being  proved  by  the  admission  of  such  deed. 

The  tax  rolls  are  not  competent  to  prove  the  levy  of  a  tax  by  a 
municipal  corporation.  Such  proof  must  be  made  by  proving 
the  city  ordinance  levying  the  tax.  Earle  v.  City  of  Henrietta, 
43  S.  W.  15,  91  Tex.  301. 


246  Taxation  in  Texas. 

§  395.     Admission  in  pleadings. 

Where  the  pleadings  of  both  parties  are  required  to  be  sworn 
to,  in  an  action  by  the  state  to  foreclose  a  tax  lien,  it  is  unneces- 
sary for  the  state  to  prove  facts  admitted  in  defendant's  verified 
answer.  League  v.  State,  57  S.  W.  34,  93  Tex.  553 ;  League  v. 
State,  56  S.  W.  262. 

§  396.     To  show  valuation — Assessment. 

Tax  assessment  book  held  admissible  to  show  value  of  per- 
sonal property.     White  v.  Beal,  45  S.  W.  1060. 

§  397.     Tax  deed  conclusive  as  to  facts  stated  therein. 

Where  a  tax  collector  sells  land  for  taxes,  the  deed  given  by 
him  is  conclusive  upon  the  purchaser  claiming  thereunder  as  to 
the  facts  relating  to  the  sale  therein  stated.  Eustis  v.  City  of 
Henrietta,  43  S.  W.  259,  91  Tex.  325.  ^ 

§  398.     Sale  for  larger  amount  void. 

A  tax  sale  of  land  for  an  amount  greater  than  the  tax  collector 
is  authorized  by  law  to  charge  is  void.  Eustis  v.  City  of  Hen- 
rietta, 43  S.  W.  259,  91  Tex.  325. 

§  399.     Admission  in  pleadings. 

A  complaint  in  an  action  by  a  city,  setting  up  that  certain 
property  was  purchased  by  the  city  at  a  tax  sale  which  defendant 
claimed  was  void,  and  asking  judgment  for  the  delinquent  taxes 
if  the  sale  was  void,  did  not  admit  that  the  taxes  had  been  paid 
by  the  sale.    Conklin  v.  City  of  El  Paso,  44  S.  W.  879. 

§  400.     Presumption  of  legality  of  levy. 

In  the  case  of  Com.  v.  Slifer,  25  Pa.  St.  23,  the  supreme  court 
of  Pennsylvania  say:  "But  the  acts  of  public  officers,  where  the 
rights  of  the  public  require  it,  should  be  construed  with  liberality. 
There  is  always  a  presumption  that  they  are  in  accordance  with 
the  law.  The  presumption  can  be  repelled  only  by  clear  evidence 
of  illegality."  In  our  opinion,  the  rights  of  the  public  require 
that  in  a  suit  for  the  recovery  of  taxes  the  proof  of  the  levy  of  a 
tax,  not  illegal  upon  its  face,  by  a  body  intrusted  with  the  duty  of 
making  such  levy  in  a  proper  case,  should  be  deemed  prima  facie 
evidence  that  the  facts  existed  which  warranted  their  action, 
and  that  the  levy  is  lawful.  State  v.  Hannibal  &  St.  J.  R.  Co., 
101  Mo.  136,  13  S.  W.  505;  Sherrill  v.  Hewitt  (Sup.),  13  N.  Y. 


Evidence.  247 

Supp.  498;  Arnold  v.  Supervisors,  43  Wis.  627;  Silshee  v. 
Stockle,  44  Mich.  561,  7  N.  W.  160,  367;  Moore  v.  Foote,  32 
Miss.  469.  It  is  not  difficult  for  a  defendant  in  a  suit  for  the  re- 
covery of  taxes,  who  attacks  the  levy  for  illegality,  to  plead  and 
prove  the  facts.  It  follows,  as  we  think,  from  our  last  conclusion, 
that  it  was  sufficient,  prima  facie,  for  the  city  to  offer  in  evi- 
dence the  annual  ordinances  making  the  levies  to  pay  the  interest 
and  sinking  fund  upon  the  bonded  debts.  City  of  San  Antonio  v. 
Berry,  48  S.  W.  498,  92  Tex.  319. 

§  401.     Not  necessary  to  show  title  when. 

In  trespass  to  try  title,  where  plaintifif  based  his  title  on  a  pur- 
chase at  a  tax  sale  of  defendant's  land,  and  defendant  set  up  his 
title  as  owner  of  the  property  at  the  time  of  the  sale,  it  was  not 
necessary  that  plaintiff  show  title  to  the  land  in  defendant  at  the 
time  of  the  sale.  Collins  v.  Ferguson,  56  S.  W.  225,  22  Tex.  Civ. 
App.  552 ;  Murphy  v.  Williams,  56  S.  W.  695. 

§  402.     Levy,  prima  facie  evidence  of  facts. 

Where  a  city  council  intrusted  by  law  with  the  duty  of  levying 
taxes  levies  for  a  designated  purpose,  such  levy  constitutes  prima 
facie  evidence  that  the  facts  existed  which  warranted  the  action 
of  the  council  in  making  the  levy.  Nalle  v.  City  of  Austin,  56 
S.  W.  954,  23  Tex.  Civ.  App.  595. 

§  403.     Deed  of  tax  collector  at  summary  sale  not  evidence  of 
title  when. 

For  one  to  avail  himself  of  the  five  years'  statute  of  limitations, 
not  only  must  his  adverse  possession  have  continued  for  that 
period,  but  it  must  have  been  under  a  deed  registered  for  that 
period.    Allen  v.  Courtney,  58  S.  W.  200,  24  Tex.  Civ.  App.  86. 

§  404.     Parol  testimony  where  tax  rolls  are  lost. 

Where  the  tax  rolls  for  1895  and  1896  were  lost,  evidence  of  a 
deputy  assessor  and  collector,  who  assisted  in  making  up  the 
tax  rolls  for  those  years,  was  admissible  to  show  that  the  gen- 
eral tax  rolls  of  the  city  for  those  years  were  true  copies  of  the 
assessment  rolls,  and  that  plaintiff  had  not  paid  his  taxes  for 
those  years.  Grace  v.  City  of  Bonham,  63  S.  W.  158,  26  Tex. 
Civ.  App.  161. 


248  Taxation  in  Texas. 

§  405.     Admission.  - 

Negotiations  having  arisen  between  plaintiff  and  defendant  city 
looking  to  the  acquisition  of  some  of  plaintiff's  land  for  a  street, 
she  fixed  a  price  on  the  land,  which  the  council  agreed  to  allow, 
provided  it  was  applied  on  certain  back  taxes  which  she  owed 
the  city.  She  agreed  with  the  city  attorney  to  allow  the  money 
to  go  to  satisfy  her  taxes  in  full,  which  agreement  was  reported 
to  the  council  and  accepted.  Afterwards  she  brought  a  deed  for 
the  land  to  the  mayor,  and  endorsed  the  warrant  which  she  re- 
ceived therefor  back  to  the  city,  protesting  at  the  same  time 
against  the  amount  of  the  taxes.  Held,  that  the  payment  by  her 
of  the  taxes  was  voluntary.  Ostrum  v.  City  of  San  Antonio,  71 
S.  W.  304,  30  Tex.  Civ.  App.  462. 

§  406.     Competency,  sufficiency  of  description. 

Where  no  objection  was  made  to  proof  by  certificate  of  the 
tax  collector  that  land  in  controversy  appeared  on  the  rendered 
rolls  for  a  certain  year  in  certain  names,  and  that  the  taxes  were 
not  paid  on  it  for  that  year,  an  assignment  questioning  the  com- 
petency of  such  evidence  can  not  be  sustained. 

Where  there  was  only  one  location  of  land  in  the  county  for  a 
certain  volunteer,  and  that  of  a  tract  of  269  acres,  a  description 
of  the  tract  on  the  tax  roll  as  his  location  of  320  acres,  the  tract 
being  otherwise  identified,  was  sufficient.  Barrett  v.  Spence,  67 
S.  W.  921,  28  Tex.  Civ.  App.  244. 

§  407.     List  alone  not  evidence. 

Sayles  Civ.  St.,  Art.  5232c,  provides  that  the  lists  of  land  sold 
to  the  state  for  taxes,  prepared  by  the  tax  collector  and  certified 
by  the  county  judge,  and  assessment  rolls  and  books  on  file  in  the 
collector's  office,  shall  be  prima  facie  evidence  that  the  require- 
ments of  the  law  had  been  complied  with,  and  that  the  amount 
claimed  as  taxes  is  a  correct  charge.  Held,  that  where  the  list 
prepared  by  the  tax  collector  was  alone  introduced  in  evidence 
without  proof  of  the  assessment  and  other  requirements  to  sub- 
ject the  land  to  taxes,  a  judgment  for  the  taxes  must  be  reversed. 
Watkins  v.  State,  61  S.  W.  533. 

§  408.     In  prosecution  for  occupation  tax,   state  must  show 
amount  of  levy. 
In  a  prosecution  for  pursuing  an  occupation  without  license, 
the  state  should  not  merely  show  the  orders  of  the  commission- 


Evidence.  249 

ers'  court  levying  the  tax,  but  also,  from  the  minutes  of  the 
court,  the  amount  of  such  levy.  Barnes  v.  State,  72  S.  W.  177, 
44  Tex.  Crim.  App.  473. 

§  409.     Tax  receipts  evidence  of  rendition. 

Where,  in  trespass  to  try  title,  defendant  claimed  title  by  five 
years'  adverse  possession  and  payment  of  taxes,  and  produced 
the  receipts  of  the  tax  collector  of  the  county  for  the  taxes  of 
each  year,  such  receipts  proved  prima  facie  that  the  land  had  been 
rendered  for  taxes  for  that  year,  the  collector  having  no  power 
to  make  the  collection  except  on  rendition  of  the  land,  Thomson 
V.  Weismmi,  82  S.  W.  503,  98  Tex.  170. 

§  410.     Assessment  lacking  affidavit  of  assessor  not  admissible. 

An  assessment  roll  is  not  admissible  in  evidence  where  the  affi- 
davit of  the  assessor  required  by  Rev.  St.  1895,  Art.  5130,  is  not 
attached  thereto.  Taber  v.  State,  85  S.  W.  836,  38  Tex.  Civ. 
App.  235. 

§411.     Assessment  and  demand  must  be  shown. 

To  maintain  a  suit  for  taxes,  in  the  absence  of  statutory  au- 
thority, an  assessment  must  be  shown,  and  demand  for  the  tax 
made  of  the  delinquent.  The  taxpayer  must  be  first  in  default  by 
his  failure  to  pay.  Lochaxrt  v.  Mayor,  Aldermen,  etc.,  of  the  city 
of  Houston,  45  Tex.  317. 

§  412.     Payment  of  taxes  as  evidence  of  partition. 

The  fact  that  one  claiming  under  an  alleged  ancient  partition 
of  land  has  paid  taxes  on  the  interest  claimed  by  him,  should 
be  admitted  in  evidence  as  a  circumstance  tending  to  show  the 
partition.    Glasscock  v.  T.  P.  Hughes,  55  Tex.  461. 

§  413.     Allowed  to  prove  notations  on  roll. 

Defendant  should  have  been  allowed  to  prove  by  the  assessor 
that  the  abbreviation  "Bd.  eq.,"  meaning  "Board  of  Equaliza- 
tion," upon  the  original  list,  was  placed  there  by  the  judge,  who 
under  order  of  the  board,  so  placed  the  increased  valuation  thus 
shown  and  carried  it  to  the  tax  roll  as  the  act  of  the  board,  though 
such  facts  were  not  shown  by  the  minutes  of  the  judge.  Duck 
V.  Feeler,  11  S.  W.  1111,  74  Tex.  268. 

§  414.     Copy  of  delinquent  tax  record  admissible — When. 

In  an  action  to  recover  taxes  assessed  on  certain  lands  in  M. 
County,  there  was  attached  to  plaintiff's  petition  as  an  exhibit 


250  Taxation  in  Texas. 

a  copy  of  the  delinquent  tax  record  and  the  assessment  rolls  of 
M,  County,  approved  by  the  commissioners'  court  and  certified 
to  by  the  county  judge.  The  copy  of  the  delinquent  tax  record 
only  purported  to  show  the  assessments  made,  and  did  not  show 
the  county  for  which  the  assessments  were  made,  but  the  county 
clerk's  certificate  showed  that  it  was  a  copy  of  certain  pages 
of  the  delinquent  tax  records  of  M.  County  and  no  objection 
was  made  to  the  introduction  of  the  assessment  rolls  in  evidence. 
Held,  that  objections  to  the  admission  of  the  copy  of  the  delin- 
quent tax  record,  on  the  ground  that  it  did  not  show  in  which 
county  the  lands  were  assessed,  and  that  it  was  not  certified  to  be 
a  copy  of  the  delinquent  tax  record  as  it  appeared  in  the  office  of 
the  county  clerk,  were  untenable.    Figures  v.  State,  99  S.  W.  412. 

§  415.  Owner's  rendition  admissible  to  show  value  of  property 
in  damage  suit. 
In  an  action  by  an  owner  of  property  abutting  on  a  street 
for  injuries  caused  by  the  construction  and  maintenance  by  a 
railroad  of  a  tunnel  and  approaches  in  the  street  the  rendition  of 
the  property  for  taxes,  made  by  its  general  manager,  showing  its 
valuation  not  sworn  to  is  admissible  as  an  admission  by  the  owner 
of  its  value.  Burton  Lumber  Co.  v.  City  of  Houston,  101  S.  W. 
822,  45  Tex.  Civ.  App.  363. 

§  416.     Payment  of  taxes  to  show  extent  of  claim. 

In  an  action  to  recover  land,  where  a  party  claims  the  whole 
tract  by  adverse  possession,  evidence  that  he  paid  taxes  on  only 
forty  acres  was  admissible  on  the  issue  of  the  extent  of  his  claim. 
White  V.  E(wenson,  101  S.  W.  1029,  46  Tex.  Civ.  App.  158. 

§  417.     Payment  of  city  tax  no  evidence  of  payment  of  state 
and  county  tax. 

State  V.  Quillen,  115  S.  W.  660. 

§418.     Tax  rolls. 

A  consolidated  assessment  roll  for  the  year  1871,  made  up  un- 
der the  directions  of  the  justices  of  the  peace  of  Galveston  County, 
as  required  by  the  instructions  of  the  comptroller,  and  coming 
from  the  proper  repository  thereof,  was  held  to  be  competent  evi- 
dence in  a  suit  to  recover  taxes  shown  thereby  to  be  due,  although 
said  roll  did  not  appear  to  be  certified  as  required  by  the  instruc- 
tions of  the  comptroller.  Clegg  v.  County  of  Galveston,  1  W.  W. 
Civ.  60. 


CHAPTER  XIX. 


JUDGMENT. 


Sec. 
419. 

420. 

421. 
422. 
423. 

424. 

425. 
426. 


427. 


428. 
429. 
430. 
431. 
432. 
433. 


Conclusiveness  as  to  all  par- 
ties. 
Judgment  should  be  in  favor 

of  State  and  not  its  officers. 
Res  adjudicata. 
Collateral  attack. 
Direct  or  collateral  attack. 

(a)  When  direct  attack. 
Unknown  owner — Not  subject 

to  collateral  attack — ^When. 
Recital  of  service. 
Tax  judgment  must  be  void 

before   it   can   be   attacked 

collaterally. 
Judgment    against    unknown 

defendants       not       valid — 

When. 
Several  parcels  of  land. 
Judgment  on  lots  in  bulk. 
Must  fix  lien  on  each  lot. 
Description  of  land  sufficient. 
Description   insufficient. 
Erroneous       description       in 

rolls. 


Sec. 

434.  Conclusiveness   of   judgment. 

435.  Errors   of    procedure    cannot 

be  looked  into. 

436.  Suit     to     set     aside     where 

brought. 

437.  Judgment  for  license  tax. 

438.  Suit  against  unknown  owner 

void — When. 

439.  Cannot  set  impeach  judgment 

—When. 

440.  May  compel  levy  to  pay. 

441.  Pendente  lite. 

442.  Personal    judgment    may    be 

recovered. 

443.  Personal   judgment — Levy   of 

city  taxes. 

444.  No  personal  judgment  can  be 

rendered  on  an  invalid  as- 
sessment. 

445.  City     entitled     to     personal 

judgment. 

446.  Recitals    of    placing    in    pos- 

session— Surplusage. 


§  419.     Conclusiveness  as  to  all  parties. 

A  judgment  foreclosing  the  state's  lien  in  a  suit  under  the  de- 
linquent tax  act  is  conclusive  against  all  persons  who  were  par- 
ties to  the  suit  and  who  were  served  with  citation,  whether  they 
were  named  in  the  judgment  or  not.  Ball  v.  Carroll,  92  S.  W. 
1024,  42  Tex.  Civ.  App.  323. 

§  420.     Judgment  should  be  in  favor  of  state  and  not  its  officers. 

Where,  in  a  suit  to  restrain  collection  of  a  state  privilege  tax,  a 
cross-bill  prayed  judgment  for  the  taxes  in  favor  of  the 
state,  a  judgment  for  the  taxes  should  have  been  rendered  in  fa- 
vor of  the  state,  and  not  in  favor  of  the  officers  who  were  sued 
and  who  appeared  in  the  state's  behalf.  Producer's  Oil  Company 
V.  Stephens,  99  S.  W.  157,  44  Tex.  Civ.  App.  327. 


252  Taxation  in  Texas. 

§  421.     Res  adjudicata. 

A  judgment  setting  aside  and  canceling  certain  judgments  fore- 
closing a  tax  lien  and  vesting  title  in  the  city  to  real  estate  sold 
for  such  taxes,  from  which  no  appeal  is  taken,  is  conclusive,  and 
the  question  whether  the  judgments  were  properly  set  aside  can 
not  be  raised  in  an  action  against  the  city  by  a  taxpayer  for  dam- 
ages resulting  to  him  from  a  sale  of  such  property  by  the  city  to 
an  innocent  purchaser.  City  of  Houston  v.  Walsh,  66  S.  W.  106, 
27  Tex.  Civ.  App.  121. 

§  422.     Collateral  attack. 

The  court's  failure,  in  a  proceeding  to  sell  for  taxes  land  of  a 
non-resident  served  by  publication,  to  file  a  statement  of  the  evi- 
dence as  required  by  Sayles  Ann.  Civ.  St.,  Art.  1346,  as  also  its 
failure  to  appoint  an  attorney  for  defendant  as  required  by  the 
same  article,  do  not  invalidate  the  judgment  so  as  to  render  it  sus- 
ceptible to  collateral  attack,  but  can  only  be  taken  advantage  of 
by  appeal,  writ  of  error,  or  bill  of  review.  Crosby  v.  Bonnowsky, 
69  S.  W.  212,  29  Tex.  Civ.  App.  455. 

It  is  not  necessary  for  the  plaintiff  here  to  show  that  the  de- 
fendants in  Cause  No.  1180  were,  in  fact,  cited  to  appear.  The 
judgment  was  sufficient  to  support  the  order  of  sale.  It  ascer- 
tained the  amount  of  the  tax,  adjudged  it  to  be  a  lien  on  the 
property,  and  ordered  the  sale  thereof  to  satisfy  the  amount.  It 
was  not  necessary  to  render  a  personal  judgment  against  the  de- 
fendants ;  nor  was  it  necessary  to  award,  in  terms,  execution  on 
the  judgment.    Higgins  zk  Bordages,  28  S.  W.  352. 

A  judgment  for  taxes  was  rendered  in  a  court  of  competent 
jurisdiction,  and  the  same  presumptions  would  be  indulged  in 
connection  with  it  as  would  attend  judgments  in  any  kind  of  suit 
or  actions.  If  rendered  with  competent  jurisdiction,  they  can 
not,  as  a  general  rule,  be  attacked  collaterally  upon  questions 
relating  to  the  validity  of  the  tax,  or  to  the  regularity  of  the  as- 
sessment, levy  or  return,  or  to  the  regularity  of  the  court  pro- 
ceedings. Kenson  v.  Gage,  79  S.  W.  606,  34  Tex.  Civ.  App.  547 ; 
Cooley  on  Taxation  (3d  Ed.),  pp.  897,  898;  Fitch  v.  Boyer,  51 
Tex.  344 ;  Murchison  v.  White,  54  Tex.  78 ;  Martin  v.  Robinson, 
67  Tex.  369,  3  S.  W.  550;  Litney  v.  Marshall,  79  Tex.  513,  15 
S.  W.  586. 

When  a  judgment  in  a  tax  suit  does  not  show  service  of  cita- 
tion and  the  record  therein  shows  that  a  certain  citation  is  the 


Judgment.      '  253 

basis  of  the  judgment,  the  judgment  may  be  collaterally  attacked 
for  invalidity  of  the  citation,  as  such  attack  in  no  way  involves  a 
contradiction  of  the  record.  Bahcock  v.  WoWofrth  et  al.,  80  S. 
W.  642,  35  Tex.  Civ.  App.  512. 

On  October  17,  1899,  the  city  of  Houston  recovered  a  judg- 
ment against  J.  B.  Simpson  in  the  district  court  of  Harris  County 
for  city  taxes  due  by  J.  B.  Simpson  on  lots  Nos.  7  and  8,  in 
Block  37  of  the  Allen  addition  to  the  city  for  the  year  1898.  The 
amount  adjudged  against  each  of  the  lots  was  $11.95  and  lawful 
interest.  The  tax  lien  having  also  been  foreclosed,  an  order  of 
sale  was  issued  on  March  5,  1900,  and  on  April  3,  1900,  the 
property  was  regularly  sold  and  conveyed  to  T.  J.  Glaze,  who 
became  the  purchaser  at  the  sheriff's  sale.  On  April  22,  1902, 
Glaze  conveyed  the  property  to  J.  M.  Blair  and  on  July  5,  1902, 
Blair  conveyed  to  W.  A.  Huff.  On  August  16,  1902,  Huff 
brought  this  suit  against  Simpson  in  the  form  of  an  action  of  tres- 
pass to  try  title  for  the  recovery  of  the  title  and  possession  of 
the  property.  Simpson  answered  by  general  denial,  plea  of  not 
guilty,  and  by  cross-bill  sought  to  set  aside  the  judgment  under 
which  the  sale  was  made  on  the  ground  that  the  city,  in  the  trial 
of  that  cause,  failed  to  prove  that  the  city  council  of  the  city  had 
levied  a  tax  for  the  year  1898.  In  the  trial  of  this  cause  before 
the  court  without  a  jury  the  facts  above  stated  were  established 
and  judgment  was  rendered  in  favor  of  Huff.  Simpson  appealed 
and  here  contends  that  his  cross-bill  was  a  direct  attack  upon  the 
judgment  which  is  the  basis  of  the  appellee's  title,  and  being 
such  he  had  the  right  to  have  it  vacated  upon  proof  that  the  levy 
of  the  tax  had  not  been  shown  upon  the  trial  at  which  the  judg- 
ment was  procured. 

The  judgment  assailed  recites  due  and  proper  service,  and  was 
regularly  rendered  by  default.  The  assault  upon  it  is  not  direct, 
but  is  a  collateral  attack,  made  in  a  proceeding  instituted  by  a 
different  plaintiff,  and  in  which  the  judgment  is  but  a  link  in  his 
chain  of  title.  Such  a  judgment,  as  against  such  an  attack,  im- 
ports absolute  verity,  and  the  offer  of  appellant  to  show  by  parol 
that  the  judge  who  rendered  it  did  not  hear  proof  of  the  levy 
of  the  tax  was  properly  excluded  by  the  court.  Under  the  plead- 
ings and  the  evidence  no  other  result  could  have  been  reached. 
Simpson  v.  Huff,  74  S.  W.  49. 


254  Taxation  in  Texas. 

§  423.     Direct  or  collateral  attack. 

An  action  to  set  aside  a  judgment  for  taxes  is  a  collateral  and 
not  a  direct  attack,  where  the  state  and  a  bank  were  parties  to  the 
judgment,  but  are  not  made  parties  to  the  action  to  set  it  aside. 
Dunn  V.  Taylor,  94  S.  W.  347,  42  Tex.  Civ.  App.  241. 

In  trespass  to  try  title  by  one  whose  title  depended  on  a  judg- 
ment in  favor  of  the  state  for  delinquent  taxes,  on  order  of  sale 
issued  thereon,  and  sale  thereunder,  an  answer  to  have  the  sale 
set  aside  could  not  be  regarded  as  a  direct  attack  on  the  sale  for 
the  want  of  proper  parties.  Ryon  v.  D'aans,  75  S.  W.  59,  32  Tex. 
Civ.  App.  500. 

(a)     When  direct  attack. 

Where  a  city  having  recovered  judgments  foreclosing  certain 
alleged  tax  liens  on  property  therein,  and  plaintiff  sued  to  have 
the  sale  enjoined  and  the  judgments  set  aside,  on  the  ground  that 
the  assessment  was  invalid,  such  action  was  a  direct  attack  on  the 
judgments,  and  it  was  therefore  immaterial  whether  they  were 
void  or  only  voidable.    McMickle  v.  Rochelle,  125  S.  W.  74. 

§  424.     Unknown    owner — Not    subject    to    collateral    attack 
when. 

A  judgment  of  a  domestic  court  of  general  jurisdiction  can 
not  be  collaterally  attacked  for  insufficient  notice  to  defendant, 
unless  want  of  such  notice  appears  on  the  face  of  the  judgment 
or  by  other  documents  constituting  a  part  of  the  record  in  the 
case.  Sayles  Ann,  Civ.  St.  1897,  Art.  5232o,  prescribing  the 
manner  in  which  notice  by  publication  may  be  served  on  non-resi- 
dents and  unknown  owners  in  suits  by  the  state  for  the  collection 
of  taxes,  requires  that,  on  affidavit  setting  out  that  the  owners 
are  unknown,  such  parties  shall  be  cited  by  notice  directed  to  all 
persons  owning  or  claiming  any  interest  in  the  land.  Held,  that 
the  recital  in  a  judgment  of  due  notice  to  defendant,  "an  un- 
known person,"  was  conclusive  against  a  collateral  attack,  though 
it  appeared  that  the  citation  was  directed  to  an  unknown  person, 
and  not  to  all  persons  owning  or  claiming  any  interest  in  the 
land.    Carr  v.  Miller,  123  S.  W.  1158. 

§  425.     Recital  of  service. 

Where  the  judgment  entry  recited  that  the  defendant  had  been 
"duly  served  with  process"  it  implies  absolute  verity  and  can 


Judgment.  255 

not  be  collaterally  attacked.    Treadivay  v.  Easthurn,  57  Tex.  209. 

When,  however,  a  summons  and  return  appear  in  the  record, 
and  there  is  no  finding  of  the  court  from  which  it  may  be  inferred 
that  there  was  other  service,  or  appearance,  it  will  be  presumed 
that  the  court  acted  upon  the  service  which  appears  in  the  record. 
Clark  V.  Thompson,  47  111.  25,  95  Am.  Dec.  475 ;  Earnest  v. 
Glaser,  74  S.  W.  606,  32  Tex.  Civ.  App.  378. 

A  judgment  for  delinquent  taxes,  rendered  on  service  by  pub- 
lication regular  in  all  respects,  and  reciting  that  citation  had  been 
duly  had  by  publication,  and  decreeing  a  lien  with  foreclosure 
thereon  for  the  taxes  in  favor  of  the  state  against  all  persons 
claiming  any  interest  in  the  land,  and  directing  the  sale  of  the 
land,  can  not  be  collaterally  attacked  by  one  failing  to  show  that 
he  was  in  possession  of  the  land  when  the  foreclosure  suit  was 
filed  and  citation  issued.    Gihhs  v.  Scales,  118  S.  W.  188. 

§  426.  Tax  judgment  must  be  void  before  it  can  be  attacked 
collaterally. 

In  trespass  to  try  title,  even  if  plaintiffs  show  title  but  for  de- 
fendant's deed  under  tax  foreclosure,  it  must  appear  from  the 
record  in  the  tax  foreclosure  case  that  judgment  is  void,  and 
therefore  subject  to  collateral  attack,  before  it  can  be  overcome  as 
a  bar  to  plaintiff's  right  of  action.  Young  v.  Jackson,  110  S. 
W.  74. 

A  judgment  for  taxes  against  the  unknown  heirs  of  a  former 
owner  being  void  as  to  the  owner  under  grant  from  the  deceased, 
who  had  no  notice  of  a  suit,  he  may  collaterally  attack  such  judg- 
ment.   Green  v.  Robertson,  70  S.  W.  345,  30  Tex.  Civ.  App.  236. 

§  427.    Judgment  against  unknown  defendants  not  valid  when. 

A  judgment  for  taxes,  showing  on  its  face  that  it  was  against 
unknown  owners  of  land,  rendered  prior  to  the  passage  of  Sayles 
Ann.  Civil  St.,  Art,  5232o,  authorizing  service  by  publication 
on  unknown  owners  of  land  in  proceedings  to  collect  taxes,  there 
being  no  provision  for  that  purpose  prior  to  that  time,  is  void 
and  not  merely  voidable.  Dunn  v.  Taylor,  94  S.  W.  347,  42  Tex. 
Civ.  App.  241. 

§  428.     Several  parcels  of  land. 

A  judgment  fixing  a  general  lien  upon  several  city  lots  for 
the  taxes  due  upon  all  is  erroneous,  since  the  lien  exists  upon 


256  Taxation  in  Texas, 

each  parcel  of  land  only  for  the  tax  due  upon  it.  There  is  no 
lien  upon  one  lot  or  block  for  the  tax  due  upon  any  other  lot  or 
block  of  land.  McComhs  v.  City  of  Rockport,  14  Tex,  Civ,  App, 
562, 

Contra,  see  Masferson  vs.  State,  \7  Tex,  Civ,  App.  93 ;  Guer- 
guin  V.  City  of  San  Antonio,  50  S,  W,  141,  in  both  of  which  cases 
writs  of  error  were  refused  by  the  supreme  court.  In  the  case 
of  Masterson  v.  State  the  court  of  civil  appeals  says :  "The  next 
proposition  is,  that  the  judgment  is  not  warranted  by  the  law, 
and  is  in  violation  of  the  constitution  in  that  it  decrees  a  lien  on 
and  orders  a  sale  of  eighty-one  different  tracts  of  land  to  pay  a 
lump  sum  of  $684.27  and  orders  a  sale  of  the  whole  land,  the 
proceeds  of  the  whole,  in  excess  of  the  judgment,  to  be  paid  to 
the  defendant,  and  if  the  land  does  not  bring  enough,  orders  exe- 
cution for  the  balance.  Articles  5232f  and  5232j  authorize  a 
foreclosure  in.  the  manner  of  the  decree.  We  know  of  no  pro- 
vision that  the  taxes  due  on  one  tract  in  an  assessment  is  a  lien 
on  that  tract  only.  On  the  contrary.  Section  15,  Article  8,  of  the 
Constitution,  says  that  the  annual  assessment  of  landed  property 
shall  be  a  special  lien  thereon,  and  that  all  the  property  of  a 
delinquent  taxpayer  shall  be  liable  to  seizure  and  sale  for  the 
payment  of  all  the  taxes  and  penalties  due  by  such  delinquent. 
Appellant  also,  in  this  connection,  cites  Section  13,  Article  8,  of 
the  Constitution,  as  follows :  'Provision  shall  be  made  by  the  first 
legislature  for  the  speedy  sale  of  a  sufficient  portion  of  all  lands 
and  other  property  for  the  taxes  due  thereon' ;  and  also  Article 
5184,  Revised  Statutes,  which  directs  the  collector  to  sell  so 
much  of  the  real  estate  as  may  be  necessary  to  pay  the  taxes 
and  penalties,  *  *  *  to  the  bidder  who  will  pay  the  taxes  for  the 
least  amount  of  the  real  estate.  This  Article  5184  plainly  has  ref- 
erence to  sales  by  the  collector,  and  not  to  the  remedy  of  the  fore- 
closure. The  constitutional  provision  above  quoted  is  not  in- 
fringed by  the  act  under  which  this  suit  is  brought.  It  seems 
to  relate  to  summary  sales  for  taxes,  but  if  it  should  relate  to 
all  sales  for  taxes,  it  seems  to  us  that  under  Article  5232g,  Re- 
vised Statutes  (Section  7  of  the  Act  of  1895),  defendant  had  the 
right  to  require  the  sheriff  to  sell  each  tract  separately.  The 
tracts  in  this  instance  were  divided  and  separate,  and  the  intent 
of  said  section  would  give  the  defendant  the  power  to  have  them 
sold  separately,  or  even  in  subdivisions  of  one  or  more  tracts,  if 


Judgment.  257 

he  so  desired.  The  statute,  therefore,  had  due  regard  to  said  con- 
stitutional provision.  We  conclude  that  the  decree  foreclosing 
upon  the  lands  generally  was  regular,  and  that  the  direction  for 
an  order  of  sale  of  the  land  as  in  other  cases  was  not  error. 
The  sole  contention  appears  to  be  that  the  judgment  is  violative 
of  the  constitution,  and  with  this  we  do  not  agree."  Masterson 
V.  State,  17  Tex.  Civ.  App.  94. 

It  was  held  in  Edmondson  v.  City  of  Galveston,  53  Tex.  161, 
that  the  lien  given  by  the  Constitution  of  1869  for  taxes  assessed 
against  land,  constitutes  a  charge  only  upon  each  separate  tract 
for  the  taxes  assessed  against  it,  and  that  a  judgment  declaring 
a  lien  upon  several  tracts  for  the  aggregate  due  on  all,  would  be 
erroneous,  whether  the  tax  was  due  a  municipal  government  or 
the  state.  Jodon  v.  The  City  of  Brenham,  57  Tex.  657;  Clegg 
V.  State,  42  Tex.  506 ;  State  v.  Baker,  49  Tex.  76Z. 

In  a  suit  for  taxes  against  non-residents  it  is  error  to  enter 
judgment  for  the  gross  sum  due  against  several  owners  of  dif- 
ferent tracts  without  stating  what  amount  of  taxes  was  adjudged 
to  be  a  lien  on  each  separate  tract.  Borden  et  al.  v.  City  of  Hous- 
ton, 26  Tex.  Civ.  29,  62  S.  W.  427. 

In  a  suit  for  taxes  against  S'everal  jointly,  a  several  judgment 
is  not  sustained  by  a  petition  which  does  not  allege  which  de- 
fendants own  the  several  tracts,  or  the  amount  of  taxes  assessed 
against  each  tract.  Borden  et  al.  v.  City  of  Houston,  26  Tex. 
Civ.  29,  62  S.  W.  428. 

Under  the  charter  of  the  city  of  Houston  (Sp.  Laws  1897,  pp. 
72,  73),  providing  that  a  "tax  on  property  shall  be  a  lien  thereon, 
that  a  judgment  may  be  recovered  against  the  owner  for  the  tax 
with  a  foreclosure  of  the  lien,  and  the  property  sold,  either  each 
piece  separately,  or  in  gross,"  a  judgment  against  the  property 
owner  for  the  aggregate  sum  of  all  the  taxes  assessed  against 
several  parcels  of  land,  with  a  foreclosure  of  the  lien  therefor  on 
all  the  property  in  gross,  is  valid."  Turner  v.  City  of  Houston, 
51  S.  W.  642,  21  Tex.  Civ.  App.  214. 

§  429.     Judgment  on  lots  in  bulk. 

In  an  action  for  the  recovery  of  taxes  upon  city  lots  a  judgment 
fixing  the  total  amount  of  taxes  due,  and  declaring  such  amount 
a  lien  upon  the  lots,  is  erroneous,  in  that  it  does  not  limit  the 


17 


258  Taxation  in  Texas, 

lien  upon  each  lot  to  the  amount  of  taxes  due  upon  that  particular 
lot.  McCombs  v.  City  of  Rockport,  37  S.  W.  989,  14  Tex.  Civ. 
App.  560. 

A  judgment  in  a  tax  suit,  which  is  not  against  each  tract  sep- 
arately for  the  amount  due  on  each  is  not  for  that  reason  void ; 
and  it  having  been  rendered  by  a  court  having  jurisdiction  of  the 
person,  and  the  subject-matter,  the  title  of  a  purchaser  under  such 
judgment  is  not  affected.    Jones  v.  Driskell  (Mo.),  7  S.  W.  111. 

A  city  may  enforce  lien  for  taxes  though  the  land  had  been 
sold  to  the  city  for  such  taxes,  where  the  same  was  invalid. 
McCrary  v.  City  of  Cofiumche,  34  S.  W.  679. 

A  judgment  can  not  foreclose  a  lien  upon  an  entire  piece  of 
property  and  direct  its  sale  for  taxes  averred  to  have  been  assessed 
against  a  portion  only  of  the  property.  Cave  v.  City  of  Houston, 
65  Tex.  619. 

In  foreclosing  a  lien  upon  several  pieces  of  property  the  court 
may  charge  the  whole  amount  of  costs  against  all  the  property  in- 
stead of  taxing  it  pro  rata  against  the  various  pieces.  Cave  v. 
City  of  Houston,  65  Tex.  619. 

§  430.     Must  fix  lien  on  each  lot. 

In  an  action  for  the  recovery  of  taxes  upon  city  lots,  a  judg- 
ment fixing  the  total  amount  of  taxes  due,  and  declaring  such 
amount  a  lien  upon  the  lots,  is  erroneous,  in  that  it  does  not  limit 
the  lien  upon  each  lot  to  the  amount  of  taxes  due  upon  that  par- 
ticular lot.  McCombs  v.  City  of  Rockport,  37  S.  W.  988,  14  Tex. 
Civ.  App.  560. 

§  431.     Description  of"  land  sufficient. 

A  judgment,  in  proceedings  to  sell  land  for  non-payment  of 
taxes,  is  not  void  because  of  a  misdescription  of  the  survey  in 
the  petition,  citation,  and  judgment,  where  the  description  was 
accurate  as  to  the  number  of  acres,  the  abstract,  and  certificate 
numbers,  and  as  to  the  original  grantee,  but  gave  a  wrong  name 
as  the  name  of  the  patentee,  where  it  was  shown  that  there  was 
no  such  survey  in  the  county  as  the  one  named,  and  that  the  ab- 
stract and  certificate  numbers  and  the  grantee  as  stated  in  the 
petition,  citation,  and  judgment,  could  apply  to  no  other  survey 
in  the  county  than  to  the  one  in  controversy,  and  it  also  appeared 
that  in  an  exhibit  attached  to  plaintiff's  petition  the  description 
was  accurate  in  all  particulars.    Wren  v.  Scales,  119  S.  W.  879. 


Judgment.  259 

§  432.     Description  insufficient. 

The  judgment  in  a  suit  to  enforce  tax  describing  the  land  as 
"Out  Lot  Five  of  B's  First  Addition  to  R,"  is  insufficient  to 
sustain  a  claim  under  the  sale  thereon  to  Lot  Five  of  Section 
1  of  said  addition,  the  addition  having  two  sections,  each  con- 
taining a  Lot  Five.    Peareson  ik  Branch,  87  S.  W.  222. 

§  433.     Erroneous  description  in  rolls. 

Defendants  owned  and  occupied  Lot  1,  Block  6,  M.'s  Addition 
to  Y.,  as  their  homestead,  and  returned  the  lot  for  taxation,  but 
in  doing  so,  omitted  the  words  "M.  Addition."  They  paid  the 
tax  assessed.  There  was  no  proof  that  there  was  any  other  Lot 
1,  Block  6,  in  the  town  of  Y.  The  assessor  assessed  Lot  1,  Block 
6,  M.  Addition  to  an  unknown  owner ;  and  the  tax  so  assessed  not 
being  paid,  a  judgment  was  obtained  against  such  unknown  own- 
er and  the  land^sold  to  plaintiff.  Sayles  Ann.  Civ.  St.,  Art.  52321, 
provides  that  real  estate  which  may  have  been  rendered  for  taxes, 
and  paid  under  erroneous  description  in  the  assessment  rolls,  or 
lands  which  may  have  been  doubly  assessed,  and  taxes  paid  on 
one  assessment,  shall  not  be  deemed  subject  to  the  provisions  of 
Chapter  5a,  providing  for  the  collection  of  delinquent  taxes.  Held, 
that  the  tax,  having  been  paid  on  one  assessment,  though  on  an 
erroneous  description,  the  judgment  and  sale  for  delinquent  taxes 
were  void.  Hollywood  v.  Wellhausen,  68  S.  W.  329,  28  Tex. 
Civ.  App.  541 ;  Hollywood  v.  Wellhausen,  4  Tex.  965. 

§  434.     Conclusiveness  of  judgment. 

Where  a  judgment  foreclosing  a  tax  lien  is  not  void  on  its  face 
it  will  protect  a  purchaser  thereunder,  though  the  proceedings 
anterior  to  judgment  were  irregular;  and  such  judgment  is  con- 
clusive, in  a  subsequent  suit  to  try  title  to  property  purchased 
thereunder,  of  the  question  of  the  correctness  of  the  assessment 
of  taxes  for  which  the  property  was  sold.  Houssels  v.  Taylor, 
58  S.  W.  190,  24  Tex.  Civ.  App.  72. 

§  435.     Errors  of  procedure  cannot  be  looked  into. 

Errors  of  procedure  in  procuring  a  judgment  valid  on  its  face 
can  not  be  looked  to  in  determining  the  invalidity  of  a  sale  made 
under  it.  Ross  v.  Drouilhet,  80  S.  W.  243,  34  Tex.  Civ.  App. 
327;   Crosby  v.  Bannowsky,  95  Tex.  451,  68  S.  W.  47. 


260  Taxation  in  Texas. 

§  436.     Suit  to  set  aside  where  brought. 

Nothing  is  better  settled  than  that  a  suit  to  enjoin  or  set  aside 
a  judgment  merely  voidable  must  be  brought  in  the  court  in 
which  it  was  rendered.  Ross  v.  Droiiilhet,  80  S.  W.  243,  34  Tex. 
Civ.  App.  327.    , 

§  437.     Judgment  for 'license  tax. 

Judgment  for  license  tax  is  not  void,  and  therefore  relief  by 
injunction  against  execution  thereon  may  not  be  had,  though  the 
ordinance  forming  the  basis  of  the  action  was  penal  in  its  nature 
and  had  not  been  published.  Francis  Bras.  v.  Robinson,  89  S.  W. 
803,  40  Tex.  Civ.  App.  328. 

§  438.     Suit  against  unknovi^n  owner  void  when. 

A  judgment  in  a  tax  suit,  and  sale  of  land  thereunder,  rendered 
and  made  pursuant  to  a  service  of  process  by  publication  against 
unknown  owners,  and  a  trial  in  which  there  was  no  appearance 
by  the  owner,  was  void,  where  the  premises  were  actually  occu- 
pied by  the  owner  as  a  homestead  at  the  time  of  the  proceedings. 
Crosby  v.  Terry,  91  S.  W.  652,  41  Tex.  Civ.  App.  594;  Hollywood 
V.  WellhoMsen,  68  S.  W.  330,  28  Tex.  Civ.  App.  541 ;  Green  v. 
Robertson,  70  S.  W.  345,  30  Tex.  Civ.  App.  236;  Bingham 
V.  Matthems,  86  S.  W.  781,  12  Tex.  Civ.  App.  772. 

§  439.     Cannot  set  impeach  judgment  when. 

One  cannot,  on  a  motion  to  set  aside  an  execution  sale  for 
taxes,  impeach  the  judgment  by  showing  that  it  was  larger  than 
authorized  by  the  delinquent  tax  record.  Bean  v.  City  of  Brozvn- 
wood,  43  S.  W.  1036. 

§  440.     May  compel  levy  to  pay. 

The  city  charter  of  San  Antonio  requires  the  council  to  pro- 
vide for  the  payment  of  judgments  and  the  levying  of  taxes  next 
after  the  final  recovery  thereof,  and  empowers  the  levying  and 
collecting  of  an  ad  valorem  tax  for  general  purposes,  not  ex- 
ceeding a  specified  amount,  and  for  special  purposes  not  exceed- 
ing a  specified  amount,  and  provides  that  the  current  expenses  of 
the  city  shall  be  paid  by  warrants  drawn  against  the  revenues  of 
the  current  fiscal  year.  A  petition  in  mandamus,  to  compel  the 
city  to  raise  by  taxation  money  to  pay  a  judgment  against  it,  al- 
leged that  it  had  a  surplus  or  unexhausting  taxing  power,  which, 
if  exercised,  would  raise  money  sufficient  to  pay  the  judgment. 


Judgment.  261 

and  that  it  refused  to  provide  for  payment  of  the  judgment  for 
two  years  after  the  date  of  its  final  rendition  and  still  refused  to 
make  provision  for  the  payment  thereof.  Held,  to  entitle  plaintiff 
to  a  mandamus  requiring  payment  of  the  judgment.  City  of  San 
Antonio  v.  Routledge,  102  S.  W.  756,  46  Tex.  Civ.  App.  196. 

§  441.     Pendente  lite. 

One  who  purchases  land  at  a  tax  sale  with  knowledge  of  the 
tendency  of  a  suit  for  possession  thereof  is  a  purchaser  pendente 
lite,  and  is  concluded  by  the  judgment  therein.  Hicks  v.  Porter, 
85  S.  W.  437,  38  Tex.  Civ.  App.  334. 

§  442.     Personal  judgment  may  be  recovered. 

Under  Const.,  Art.  8,  Sec.  15,  making  taxes  upon  real  property 
a  lien  thereon,  and  authorizing  the  seizure  and  sale  of  property, 
both  real  and  personal,  for  the  payment  thereof,  and  Rev.  St., 
Arts.  446,  447,  authorizing  the  assessor  to  levy  upon  any  prop- 
erty subject  to  taxation  to  satisfy  such  delinquent  tax,  a  city 
chartered  under  the  general  laws  of  the  state  may  maintain  a 
suit  for  a  personal  joidgment  against  a  delinquent  taxpayer,  and 
for  a  foreclosure  of  the  lien  on  the  particular  property  upon 
which  the  tax  is  assessed.  City  of  Henrietta  v.  Eustis,  26  S.  W. 
619,  87  Tex.  14. 

§  443.     Personal  judgment — Levy  of  city  taxes. 

The  levy  of  city  taxes  on  real  estate  creates  a  liability  against 
the  taxpayer  on  which  a  personal  judgment  may  be  rendered. 
Stone  V.  Tilley,  95  S.  W.  718. 

§  444.     No  personal  judgment  can  be  rendered  on  an  invalid 
assessment. 

Where  there  is  no  valid  assessment  against  land  in  question, 
there  is  neither  cause  of  action  for  personal  judgment  against 
defendant,  nor  any  lien  shown  upon  the  land  for  the  taxes,  for 
both  are  dependent  upon  a  valid  assessment.  State  v.  Farmer,  57 
S.  W.  86. 

In  this  state  taxes  duly  levied  and  assessed  are  debts  or  legal 
demands  for  which  there  is  an  implied  promise  to  pay  by  the  per- 
son against  whose  property  they  are  assessed,  and  a  personal 
judgment  for  the  same  is  legal.  Sayles  Civil  Statutes,  Art.  477b  ; 
Bummel  v.  City  of  Houston,  68  Tex.  10;  Mellinger  v.  City  of 
Houston,  68  Tex.  37. 


262  Taxation  in  Texas. 

§  445.     City  entitled  to  personal  judgment. 

When  a  city  is  given  the  right  by  its  charter  to  sue  for  taxes, 
it  is  entitled  to  a  personal  judgment  therefor,  in  addition  to  its 
right  to  subject  the  property  of  the  person  owning  them  to  a 
foreclosure  of  its  lien  for  the  amount  of  taxes.  Berry  v.  City  of 
San  Antonio,  46  S.  W.  273,  92  Tex.  319;  City  of  San  Antonio  v. 
Berry,  48  S.  W.  499. 

A  tax  is  a  debt  for  which  in  absence  of  some  express  or  implied 
prohibition  in  the  written  law,  a  personal  judgment  might  be  re- 
covered. City  of  Henrietta  v.  Eiistis,  87  Tex.  14 ;  City  of  Hen- 
rietta V.  Eiistis,  26  S.  W.  619 ;  City  of  San  Antonio  v.  Berry,  48 
S.  W.  499,  92  Tex.  319. 

§  446.     Recitals  of  placing  in  possession — Surplusage. 

A  judgment  for  delinquent  state  and  county  taxes  is  not  wholly 
invalid  because  it  improperly  decrees  that  the  order  of  sale  to 
be  issued  thereon  shall  have  the  force  of  a  writ  of  possession, 
and  that  the  officer  making  the  sale  by  virtue  thereof  shall  place 
the  purchaser  in  possession.     Gibbs  v.  Scales,  118  S.  W.  188. 


CHAPTER  XX. 

SALE    OF    PROPERTY    UNDER    DECREE    OF    FORE- 
CLOSURE. 


Sec. 

447.  Sale  of  property  for  taxes  un- 

der decree  of  foreclosure. 

448.  Notice  of  place  of  sale  must 

be  stated. 

(a)   Inadequacy  of  price. 

449.  Will  not  set  aside  for  inade- 

quacy   where    right    to    re- 
deem exists. 

450.  In  gross. 

451.  Taxation  —  Sale    for    delin- 

quent taxes — Bona  fide  pur- 
chaser. 

452.  What    is    necessary    to    pass 

title. 

453.  Against   unknown   heirs   and 

unknown  owners. 

454.  Citation  by  publication. 

455.  Effect    of    reversal    of    judg- 

ment. 

456.  Order  of  sale  must  be  shown. 

457.  Homestead — Sale   of   part   of 

land  —  Costs  —  Misappro- 


Sec. 


458. 
459. 

460. 


461. 


priation — Irregularity  and 
inadequacy  of  price. 

Collateral  attack — When. 

Failure  to  notify  owner  or  at- 
torney not  error — When. 

Notice  to  defendant  neces- 
sary under  Article  2366,  R. 
S.  1895. 

Notice  only  necessary  to  be 
mailed. 

462.  Bona    fide    purchaser — ^Want 

of  service — Costs. 

463.  Sale    other     than     summary 

constitutional. 

464.  State's  right  to  waiver  of  ti- 

tle and  to  sue  for  taxes. 

465.  Sale  to  State  does  not  defeat 

tax  lien. 

466.  Possession  by  purchaser. 

467.  Tax  sale — Unorganized  coun- 

ties. 


§  447.     Sale  of  property  for  taxes  under  decree  of  foreclosure. 

Under  the  Acts  of  1897,  p.  135,  Sec.  7,  it  is  provided  that  in 
case  of  the  foreclosure  of  the  tax  lien  in  a  suit  for  state  and 
county  taxes  an  order  of  sale  shall  issue,  and  the  land  sold  there- 
under as  in  other  cases  of  foreclosure;  but  if  the  defendant  or 
his  attorney  shall  at  any  time  before  the  sale,  file  with  the  sheriff 
or  other  officer  in  whose  hands  any  such  order  of  sale  shall  be 
placed,  a  written  request  that  the  property  described  therein  shall 
be  divided  and  sold  in  less  tracts  than  the  whole,  together  with  a 
description  of  such  subdivisions,  then  such  officer  shall  sell  the 
lands  in  such  subdivisions  as  the  defendant  may  request,  and  in 
such  case  shall  only  sell  as  many  subdivisions,  as  near  as  may  be, 
to  satisfy  the  judgment,  interest,  penalties  and  costs,  and  after 


264  Taxation  in  Texas. 

the  payment  of  the  taxes,  interest,  penalties  and  costs  adjudged 
against  it,  the  remainder  of  the  purchase  price,  if  any,  shall  be 
paid  by  the  sheriff  to  the  clerk  of  the  court  out  of  which  said 
execution  or  other  final  process  issued  to  be  retained  by  him,  sub- 
ject to  the  order  of  the  court  for  the  period  of  two  years,  after 
which  time  the  court  may  order  the  same  paid  to  the  state  treas- 
urer, who  shall  hold  the  same  in  trust  to  be  paid  to  the  owner 
against  whom  said  taxes  were  assessed ;  provided,  any  one  claim- 
ing the  same  shall  make  proof  of  his  claim  to  the  satisfaction  of 
the  state  treasurer,  within  ten  years  after  the  sale  of  said  lands  or 
lots,  after  which  the  same  shall  be  governed  by  the  law  regulat- 
ing escheats ;  provided,  that  if  there  shall  be  no  bidder  for  such 
land  that  the  county  attorney  shall  bid  said  property  off  to  the 
state  for  the  amount  of  all  taxes,  penalties,  interest  and  costs  ad- 
judged against  said  property,  and  in  the  absence  of  the  county 
attorney  the  sheriff  is  authorized  to  bid  off  to  the  state,  when 
there  are  no  bidders ;  and  it  shall  be  the  duty  of  the  district  clerk 
to  immediately  make  report  of  such  sale  in  duplicate,  one  to  the 
comptroller  of  public  accounts,  and  one  to  the  commissioners' 
court,  on  blanks  to  be  prescribed  and  furnished  by  the  comptrol- 
ler. And  in  all  such  cases  where  the  property  is  bid  off  to  the 
state,  it  shall  be  the  duty  of  the  sheriff  to  make  and  execute  deeds 
to  the  state,  using  forms  to  be  prescribed  and  furnished  by  the 
comptroller,  showing  in  each  case  the  amount  of  taxes,  interest, 
penalty  and  costs  for  which  sold  and  the  clerk's  fee  for  recording 
deeds  as  hereafter  provided.  He  shall  cause  such  deeds  to  be 
recorded  in  the  records  of  deeds  by  the  county  clerk  of  his  county ; 
and  when  so  recorded  shall  forward  same  to  the  comptroller  and 
the  county  clerk  shall  be  entitled  to  a  fee  of  one  dollar  for  re- 
cording each  such  deed  to  the  state,  to  be  taxed  as  other  costs. 
And  when  lands  thus  sold  to  the  state  shall  be  redeemed,  it  shall 
be  the  duty  of  the  collector  of  taxes,  when  any  such  redemption 
is  made,  to  make  the  proper  distribution  of  the  moneys  received 
by  him  in  such  redemption,  paying  to  each  officer  the  amount  of 
costs  found  to  be  due,  and  to  the  state  and  county  the  taxes,  inter- 
est, and  penalties  due  each  respectively. 

§  448.     Notice  of  place  of  sale  must  be  stated. 

A  tax  sale,  the  notice  of  which  fails  to  state  the  place  where 
it  will  occur,  is  void,  and  is  not  aided  by  a  recital  in  the  tax  deed 


Sale  Under  Decree  of  Foreclosure.  265 

that  the  land  was  offered  at  public  auction  at  the  time,  place, 
and  in  the  manner  required  by  law.  Henderson  v.  White,  5  S.  W. 
374,  69  Tex.  103. 

(a)     Inadequacy  of  price. 

Both  the  judgment  and  the  writ  of  venditioni  exponas  com- 
manded the  sheriff  to  seize  and  sell  the  entire  portion  of  the  lot 
owned  by  appellees,  and  left  him  no  discretion  in  the  matter. 
There  is  no  doubt  that  the  price  for  which  the  land  was  sold  is 
grossly  inadequate;  but  that  alone,  without  fault  upon  the  part 
of  the  purchaser,  will  not  vitiate  the  sale,  nor  would  an  excessive 
levy,  if  shown,  coupled  with  such  inadequacy  of  price,  be  suffi- 
cient to  avoid  the  sale,  unless  it  should  further  appear,  as  does 
not  in  this  case,  that  such  levy  conduced  to  the  insufficiency  of 
price.  Vide  Jones  v.  Pratt,  77  Tex.  210,  13  S.  W.  887;  Pearson 
V.  Flanugan,  52  Tex.  266;  McKennon  v.  McGoum  (Tex.  Sup.), 
11  S.  W.  532;  Cook  v.  De  la  Garza,  13  Tex.  431;  Atcheson  v. 
Hutchison,  51  Tex.  223;  Scott  v.  Solomon,  59  Tex.  593;  Has- 
kins  V.  Wallet,  63  Tex.  213.  Bordages  v.  Higgins,  19  S.  W.  448, 
1  Tex.  Civ.  App.  43. 

The  question  of  inadequacy  of  price  is  in  effect  eliminated 
from  sales  for  taxes,  as  these  by  the  provision  of  the  statute  al- 
lowing the  owner  two  years  in  which  to  redeem  by  paying  double 
the  amount  of  the  sale  price.  Such  sales  are  not  designed  or 
intended  to  result  in  a  greater  price  than  enough  to  satisfy  the 
judgment.  The  greater  the  sum  bid,  the  greater  the  penalty  on 
the  owner.  It  is  the  policy  of  the  law  to  induce  bidders  to  bid 
the  amount  of  the  taxes.  The  reward  of  the  bidder  is  not  the 
right  to  the  difference  between  the  value  of  the  property  and  the 
price  bid,  but  to  demand  the  penalty  allowed  by  the  statute,  if 
the  owner  desires  to  redeem.  Ross  v.  Drouilhet,  80  S.  W.  244, 
34  Tex.  Civ.  App.  327. 

Equity  will  not  set  aside  a  judicial  sale  of  lands  for  taxes  for 
mere  inadequacy  of  price.  Crosby  v.  Bonnowsky,  69  S.  W.  212, 
29  Tex.  Civ.  App.  455. 

Void  sale,  when. 

One  purchasing  several  tracts  of  land  at  a  void  sale  can  not 
have  a  lien  on  one  of  them  without  showing  what  part  of  the 
taxes  were  chargeable  against  it.  Paris  v.  Simpson,  69  S.  W. 
1029. 


266  Taxation  in  Texas. 

In  trespass  to  try  title,  where  plaintiff  claims  as  purchaser  at 
tax  sale,  an  allegation  in  the  answer  that  the  property,  though 
sold  for  only  $54,  was  worth  $500,  is  insufficient  in  itself  to 
warrant  an  avoidance  of  the  sale  for  inadequacy  of  price.  Col- 
lins V.  Fergxison,  56  S.  W.  225,  22  Tex.  Civ.  App.  552. 

Where  land  worth  $1,000  was  purchased  for  $52.25  under 
order  of  sale  on  a  judgment  for  taxes,  the  purchasers  having  no 
notice  that  the  title  was,  by  an  unrecorded  deed,  in  one  other  than 
against  whom  the  tax  judgment  was  had,  the  inadequacy  of  price 
was  such  that  the  equity  of  the  purchasers  could  not  be  protected 
as  innocent  purchasers.  Green  v.  Robertson,  70  S.  W.  345,  30 
Tex.  Civ.  App.  236. 

§  449.  Will  not  set  aside  for  inadequacy  where  right  to  redeem 
exists. 
Where  land  worth  $12,000  or  $13,000  was  sold  for  $66.38 
under  a  tax  lien,  Batt's  Rev.  St.,  Art.  5232n,  giving  the  owners 
of  land  in  such  cases  two  years  in  which  to  redeem  by  paying 
double  the  amount  of  the  bid,  affords  sufficient  reason  for  not 
setting  aside  the  sale  because  the  owner  did  not  receive  a  notice 
mailed  to  him.    Rogers  v.  Moore,  97  S.  W.  685,  100  Tex.  220. 

§  450.     In  gross. 

A  tax  sale  of  four  several  tracts  in  gross  is  void.  Fant  v. 
Brannin,  2  U.  R.  C.  323. 

An  execution  sale  of  several  tracts  of  land  in  gross  for  taxes, 
for  which  a  judgment  of  foreclosure  in  gross  has  been  rendered, 
is  not  void.  Ryon  v.  Damis,  75  S.  W.  59,  32  Tex.  Civ.  App.  500 ; 
League  v.  State,  56  S.  W.  262,  93  Tex.  Civ.  App.  553 ;  League 
V.  State,  S7  S.  W.  34. 

§451.  Taxation — Sale  for  delinquent  taxes — Bonafide  pur- 
chaser. 
A  judgment  in  a  suit  for  delinquent  taxes  against  unknown 
owners  and  the  unknown  heirs  of  a  decedent,  regular  on  its 
face,  recited  that  defendant  had  been  duly  cited  by  publication. 
The  vendee  of  the  purchaser  at  the  tax  sale  bought  the  land  in 
good  faith,  paying  full  value  therefor,  believing  that  he  was  get- 
ting a  good  title.  He  had  no  notice  of  any  facts  that  would  in- 
validate the  judgment.  Held,  that  he  was  entitled  to  be  protected 
in  his  title,  though  the  service  on  the  unknown  heirs  was  insuffi- 
cient. Williams  et  al.  v.  Young  et  d.,  90  S.  W.  940,  41  Tex.  Civ. 
App.  212. 


Sale  Under  Decree  of  Foreclosure.  267 

§  452.     What  is  necessary  to  pass  title. 

A  valid  judgment,  execution,  and  sale  are  all  that  is  required 
to  pass  title  to  property  sold  at  execution  sale,  payment  of  pur- 
chase money  and  facts  necessary  to  entitle  the  purchaser  to  a 
deed  being  shown.  Flanniken  z'.  Neal,  67  Tex.  629,  4  S.  W.  212. 
That  the  first  deed  was  void  for  uncertainty  of  description  did  not 
defeat  plaintiff's  title.  Donnehaum  v.  Tinsley,  54  Tex.  362 ; 
Heirs  of  Logan  v.  Pierce,  66  Tex.  126,  18  S.  W.  343.  The  sec- 
ond deed  was  also  admissible  in  evidence.  It  has  been  held  that 
a  sheriff  may  amend  his  deed,  even  after  he  goes  out  of  office. 
F lemming  v.  Powell,  2  Tex.  225.  Higgins  v.  Bordages,  28  S.  W. 
352. 

§  453.     Against  unknown  heirs  and  unknown  owners. 

A  suit  to  foreclose  a  delinquent  tax  lien  was  brought  against 
a  person  named,  or  his  unknown  heirs,  and  all  persons  claiming 
any  interest  in  the  land.  The  foreclosure  was  in  general  terms, 
and  there  was  nothing  to  indicate  that  only  the  title  of  the  per- 
son named  and  his  heirs  was  intended  to  be  foreclosed.  Held, 
that  the  judgment  foreclosed  the  tax  lien  against  all  the  parties 
to  the  suit,  and  a  purchaser  at  the  tax  sale  must  be  deemed  as 
claiming  under  the  unknown  owners,  as  well  as  under  the  un- 
known heirs  of  the  person  named. 

The  fact  that  the  deed  from  the  sheriff  at  the  tax  sale  only 
purported  to  convey  the  interest  of  the  person  named  and  his  un- 
known heirs  did  not  affect  the  right  of  the  purchaser  to  claim 
under  the  unknown  owners.  Ball  v.  Carroll,  92  S.  W.  1024,  42 
Tex.  Civ.  App.  323. 

§  454.     Citation  by  publication. 

Where  a  citation  in  a  suit  for  taxes  was  executed  by  publication 

.  in  a  county  newspaper  against  the  owner  and  his  unknown  heirs 

for  eight  consecutive  weeks,  a  judgment  rendered  at  the  second 

term  thereafter,  in  which  it  was  ordered  that  the  suit  be  dismissed 

as  to  the  heirs  of  the  owner,  and  that  the  land  be  sold,  was  valid. 

Where  an  order  of  publication  in  a  tax  suit  summoned  George 
Eels  and  the  unknown  heirs  of  George  Eels,  and  the  final  judg- 
ment contained  an  order  dismissing  the  proceedings  as  to  the 
unknown  heirs  of  George  Ellis,  the  suit  stood  dismissed  as  to 
the  unknown  heirs  of  George  Eels,  since  this  was  a  mere  clerical 
error.    Eels  v.  Bladr,  60  S.  W.  462. 


268  Taxation  in  Texas. 

§  455.     Effect  of  reversal  of  judgment. 

Const.  1869,  Art.  12,  Sees.  20,  21,  provide  that  taxes  on  land 
shall  be  a  lien  thereon,  but  that  no  land  shall  be  sold  for  taxes, 
except  under  decree  of  court.  Galveston  City  Charter  1871,Tit. 
6,  Art.  14,  provides  that  no  sales  of  land  for  taxes  shall  be  made, 
except  under  decree  of  the  Galveston  district  court,  and  that 
the  city  council  may  provide  by  ordinance  for  the  institution  and 
regulation  of  suits  to  enforce  the  lien  of  unpaid  taxes,  except 
that  no  sale  shall  be  made  till  thirty  days'  notice  has  been  given 
the  owner,  which  notice  may  be  actual  or  by  advertisement  for 
sixty  days;  and  that  the  owner  may  redeem vfrom  the  sale  at 
any  time  within  two  years,  after  which  time  the  purchaser  may 
apply  for  confirmation  of  the  sale.  Rev.  Ord.  Galveston  1871, 
Chap.  39,  Art.  1,  Sec.  14,  provides  that  the  city  may  foreclose 
any  tax  lien  on  land  when  the  gross,  amount  of  taxes  shall  be 
$100  or  more,  and  that  in  rendering  judgment  separate  parcels 
shall  be  separately  condemned,  except  in  case  of  lots  in  same 
block.  Held,  that  the  jurisdiction  of  the  Galveston  district  court 
to  foreclose  a  tax  lien  was  a  special  and  limited  statutory  juris- 
diction, and  hence  a  judgment  foreclosing  a  tax  lien  was  subject 
to  collateral  attack.  Cor  dray  v.  Neuhaus,  61  S.  W.  415,  25  Tex. 
Civ.  App.  247. 

§  456.     Order  of  sale  must  be  shown. 

Sayles  Civ.  St.,  Art.  5232g,  provides  that  on  foreclosure  of  a 
tax  lien  an  order  of  sale  shall  issue,  and  the  land  shall  be  sold 
as  in  cases  of  foreclosure  of  other  liens.  Article  5232h  author- 
izes the  sherifif  to  execute  a  deed  to  the  purchaser  at  a  tax  sale, 
and  provides  that  such  deed  shall  be  held  to  vest  a  good  title  in 
the  purchaser,  subject  to  impeachment  for  fraud.  Held,  that, 
where  defendant  in  trespass  to  try  title  claimed  under  a  tax  deed, 
the  conclusiveness  of  such  deed  under  the  latter  section  did  not 
exempt  the  purchaser  from  showing  that  the  same  was  issued 
under  an  order  of  sale,  as  required  by  Section  S232g,  and  hence 
where  he  failed  to  show  the  issuance  of  such  order,  a  judgment 
for  plaintiff  was  proper.  Hoi^sels  v.  Taylor,  58  S.  W.  190,  24 
Tex.  Civ.  App.  72. 

§  457.     Homestead — Sale    of    part    of    land — Costs — Misap- 
propriation— Irregularity  and  inadequacy  of  price. 
In  an  action  to  foreclose  a  tax  Hen  on  a  homestead,  it  is  un- 
necessary to  make  a  wife  a  party,  as  it  is  presumed  that  she  has 


Sale  Under  Decree  of  Foreclosure.  269 

no  interest  in  it  separate  from  that  of  her  husband,  other  than 
her  homestead  right. 

One  can  not,  on  a  motion  to  set  aside  an  execution  sale  for 
taxes,  impeach  the  judgment  by  showing  that  it  was  larger  than 
authorized  by  the  delinquent  tax  record. 

It  was  not  error  to  refuse  to  find  that  an  owner  of  a  home- 
stead sold  at  an  execution  sale  for  taxes  would  have  designated 
a  fractional  part  for  sale  if  he  had  been  served  with  notice  of 
the  sale,  though  he  testified  to  such  effect,  where  he  was  present 
at  the  sale,  and  could  have  made  such  a  designation  shortly  be- 
fore the  sale,  but  did  not  do  so. 

The  failure  of  the  sheriflf  to  serve,  upon  the  owner  of  a  home- 
stead, notice  of  an  intended  execution  sale  thereof  for  taxes,  was 
harmless,  where  he  was  present  at  the  sale. 

Rev.  St.  1895,  Art.  517,  providing  that  a  portion  on  the  east 
side  of  land  subject  to  execution  for  taxes  should  be  first  offered 
for  sale,  need  not  be  followed,  where  such  portion  could  not  be 
so  separated  without  material  injury  to  the  remainder. 

The  power  to  charge  the  costs  of  selling  a  homestead  under 
execution  for  taxes  is  incident  to  the  power  granted  by  the  con- 
stitution to  sell  it  for  taxes. 

An  execution  sale  of  land  for  taxes  will  not  be  set  aside  be- 
cause the  officer  misappropriated  a  portion  of  the  price. 

The  fact  that  certain  printed  words  of  an  order  of  sale  were 
covered  by  a  paper  pasted  over  them  was  immaterial. 

Where  the  same  judgment  forecloses  tax  liens  against  a  home- 
stead and  other  property,  it  is  proper  to  have  separate  orders  of 
sale  issue  at  the  same  time,  that  the  homestead  may  be  sold  sep- 
arately. 

An  execution  sale  will  not  be  set  aside  on  a  ground  not  ap- 
pearing in  the  motion  therefor. 

Irregularities  in  connection  with  inadequacy  of  price  will  not 
justify  setting  aside  an  execution  sale,  unless  the  irregularities 
contributed  to  such  inadequacy. 

An  owner  of  land  sold  upon  execution  can  not  complain  of  an 
inadequacy  of  price  to  which  his  conduct  contributed.  Bean  v. 
City  of  Bromnwood,  43  S.  W.  1036,  91  Tex.  684. 

§  458.     Collateral  attack  when. 

In  trespass  to  try  title  by  one  whose  title  depended  on  a  judg- 
ment in  favor  of  the  state  for  delinquent  taxes,  an  order  of  sale 


270  Taxation  in  Texas. 

issued  thereon,  and  sale  thereunder,  an  answer  seeking  to  have 
the  sale  set  aside  could  not  be  regarded  as  a  direct  attack  on  the 
sale  for  the  want  of  proper  parties.  The  answer  could  not  be 
sustained  as  a  collateral  attack  on  the  sale  unless  the  sale  should 
be  held  void.  Ryon  v.  Davis,  75  S.  W.  59,  32  Tex.  Civ.  App. 
500. 

§  459.     Failure  to  notify  owner  of  attorney  not  error  when. 

The  failure  of  a  sherifif  to  notify  a  non-resident  owner  or  his 
attorney  of  a  sale  of  his  land  for  taxes,  where  the  owner's  resi- 
dence is  unknown  and  the  court  has  not  appointed  an  attorney 
for  him,  is  not  a  circumstance  affecting  the  sale's  validity.  Crosby 
V.  Bonnomsky,  69  S.  W.  212,  29  Tex.  Civ.  App.  455. 

§  460.  Notice  to  defendant  necessary  under  Art.  2366,  R.  S. 
1895. 

Rev.  St.  1895,  Art.  2366,  provides  that  notice  of  sale  under 
execution  shall  be  given  by  delivering  to  defendant  in  execu- 
tion, twenty  days  before  the  sale,  a  copy  of  the  notice  thereof,  if 
he  lives  in  the  county.  Acts  24th  Leg.,  Chap.  42,  p.  50,  provides 
that  on  the  sale  of  real  estate  under  judgment  for  taxes  tnere 
shall  be  an  order  of  sale  as  in  other  cases.  Held,  that  failure  of 
the  sheriff  to  serve  notice  of  the  time  and  place  of  a  tax  sale  is 
sufficient  grounds  for  setting  aside  such  a  sale  where  defendant's 
homestead,  worth  $2,500,  was  sold  for  $151,  and  a  sale  of  that 
portion  thereof  on  which  no  buildings  were  situated,  as  per- 
mitted by  Acts  24th  Leg.,  Chap.  42,  p.  50,  would  have  been 
sufficient  to  satisfy  the  tax  judgment. 

Defendant,  whose  property  is  sold  at  tax  sale  without  the  no- 
tice required  by  law,  is  not  estopped  to  ask  that  the  sale  be  set 
aside  because  he  was  present  at  the  sale,  where  he  gave  notice 
to  the  purchaser  that  he  would  buy  a  lawsuit.  Bean  v.  City  of 
Brownwood,  45  S.  W.  897,  91  Tex.  684. 

§  461.     Notice  only  necessary  to  be  mailed. 

Under  Rev.  St.  1895,  Art.  5232g,  sales  under  tax  liens  are 
made  as  in  other  cases  of  foreclosure.  Article  2366,  as  amended 
by  Act  of  1903  (Laws  Reg.  Sess.  28th  Leg.,  p.  104,  Chap.  77), 
requires  the  levying  officer  under  execution  or  order  of  sale  to 
give  defendant  or  his  attorney  written  notice  of  the  sale,  either  in 
person  or  by  mail.    Held,  that  the  mailing  of  a  notice  of  a^  sale 


Sale  Under  Decree  of  Foreclosure.  271 

under  a  tax  lien  was  sufficient,  it  being  immaterial  that  de- 
fendant did  not  receive  it.  Rogers  v.  Moore,  97  S.  W.  685,  100 
Tex.  220. 

The  statute  requires  only  that  notices  of  sales,  pursuant  to 
judgment  obtained  for  taxes,  be  mailed  to  the  property  owner, 
not  that  they  be  received  by  him.  Where  the  undisputed  proof 
is  that  notices  of  the  proposed  sale  were  mailed  to  the  address 
of  the  defendant,  the  statute  requiring  no  more  of  the  officer  in 
that  respect,  and  the  advertisement  being  unobjectionable  either 
as  to  time  or  form,  the  point  is  without  merit.  Ross  v.  Drouilhet, 
80  S.  W.  243,  34  Tex.  Civ.  App.  327. 

§  462.     Bona  fide  purchaser — Want  of  service — Costs. 

A  purchaser  under  a  conveyance  of  a  city's  title  to  land,  ac- 
quired on  foreclosure  of  a  tax  lien,  took  no  title  to  the  land, 
where  the  owner  was  not  served,  and  did  not  appear  in  the  fore- 
closure suit,  and  was  not  estopped  by  any  act  from  attacking  the 
validity  of  the  judgment. 

Houston  City  Charter  (Sp.  Laws  1897,  p.  75),  provides  that  if 
the  title  acquired  by  a  purchaser  of  land  sold  for  taxes  shall  be 
declared  invalid,  he  shall  be  entitled  to  a  lien  and  a  judgment 
for  its  enforcement  against  the  owner  of  the  property  in  the 
same  action  for  certain  sums.  Held,  that  where  the  city  con- 
veyed land  acquired  under  void  tax  foreclosure  proceedings, 
which  were  declared  void  in  an  action  by  the  purchaser  by  the 
owner,  the  purchaser  was  subrogated  to  the  city's  rights  under 
the  statute  as  against  the  owner,  hence  it  was  error  for  the  court 
to  render  judgment  for  costs,  in  such  action  to  quiet  title,  against 
the  purchaser.  Scanlan  v.  Campbell,  55  S.  W.  502,  22  Tex.  Civ. 
App.  505. 

§  463.     Sale  other  than  summary  constitutional. 

The  district  court  had  jurisdiction  of  the  suit  for  the  closure 
of  the  lien  for  the  delinquent  taxes  on  the  land  described  in  the 
petition.  The  suit  was  brought  in  strict  compliance  with  the  stat- 
ute, and,  unless  the  statute  is  in  contravention  of  the  constitu- 
tion, jurisdiction  was  properly  exercised.  By  the  Constitution  of 
1869  a  sale  of  land  for  taxes  was  prohibited,  by  a  decree  of  some 
court  of  competent  jurisdiction.  Const.  1869,  Art.  12,  Sec.  21. 
It  is  contended  that,  because  the  Constitution  of  1876  drops  this 
restriction  of  the  Constitution  of  1869,  and  directs  provision  by 


272  Taxation  in  Texas.  / 

the  first  legislature  for  the  speedy  sale  of  a  sufficient  portion  of 
all  lands  and  other  property  upon  which  the  taxes  have  not  been 
paid,  the  sale  of  property  for  taxes  is  prohibited  except  by  a  sum- 
mary sale  by  the  collector.  Const.  1876,  Art.  8,  Sees.  11,  13,  15, 
16,  as  well  as  Art.  2,  Sec.  1,  are  cited  in  support  of  the  conten- 
tion, it  being  claimed  that  a  sale  of  land  for  taxes  by  a  decree  of 
court  is  an  interference  with  the  executive  department  of  the 
state  government.  In  further  support  of  this  construction  of 
the  constitution  the  various  tax  laws  passed  since  its  adoption  are 
referred  to,  providing  for  the  summary  seizure  and  sale  of  prop- 
erty for  delinquent  taxes  as  a  legislative  construction  of  the  consti- 
tution. But  the  direction  to  the  legislature  to  make  provision  for  a 
speedy  sale  does  not  restrict  the  manner  of  sale,  but  rather  leaves 
that  to  the  discretion  of  the  legislature.  The  constitution  certainly 
does  not,  either  in  terms  or  by  implication,  prohibit  legislation 
providing  for  the  foreclosure  of  the  lien  for  taxes  in  the  courts 
and  a  sale  thereof  by  judicial  decree.  The  legislature  clearly 
had  the  power  to  provide  such  manner  for  the  collection  of  taxes. 
Legislation  under  the  Constitution  of  1869,  providing  for  sum- 
mary seizure  and  sale,  was  held  unconstitutional  because  such 
sale  was  prohibited.  There  is  no  prohibition  against  judicial 
sales  in  the  Constitution  of  1876.  League  v.  State,  56  S.  W. 
263,  93  Tex.  553. 

§  464.    States  right  to  waiver  of  title  and  to  sue  for  taxes. 

"Where  the  state  purchased  land  sold  for  taxes  of  1884  on  a 
conditional  sale,  giving  the  owner  a  certain  time  in  which  to 
redeem,  and  the  sale  became  absolute,  under  Gen.  Laws  1897, 
Ch.  103,  allowing  delinquent  taxpayers  to  redeem,  by  paying 
all  taxes  due  since  January  1,  1885,  the  state  had  a  right  to 
waive  the  forfeiture  of  the  land  under  the  conditional  sale,  and 
to  bring  action  to  enforce  the  collection  of  taxes  accrued  for 
subsequent  years."    League  v.  State,  56  S.  W.  262,  93  Tex.  553. 

§  465.     Sale  to  state  does  not  defeat  tax  lien. 

"Under  Rev.  St.  1895,  Art.  5232b,  providing  that  lands  re- 
ported sold  to  the  state  for  taxes  shall  be  taxed,  and  such  taxes 
shall  remain  a  lien  thereon,  the  state  may  enforce  a  tax  lien 
against  lands  already  sold  to  it  for  taxes.  Traylor  v.  State,  46 
S.  W.  81,  19  Tex.  Civ.  App.  86. 


Sale  Under  Decree  of  Foreclosure.  273 

§  466.     Possession  by  purchaser. 

Under  the  express  provisions  of  Gen.  Laws  1899,  p.  50,  a  pur- 
chaser at  foreclosure  of  a  tax  hen  is  not  entitled  to  possession 
of  the  property  sold  for  taxes  until  the  expiration  of  two  years 
from  the  date  of  the  deed.  City  of  Marlin  v.  Green,  79  S.  W. 
40,  34  Tex.  Civ.  App.  421. 

§467.     Tax  sale — Unorganized  counties. 

"A  sale  of  lands,  in  an  unorganized  county,  for  unpaid  taxes, 
by  the  comptroller  of  public  accounts,  made  pursuant  to  levy 
and  publication,  did  not  divest  the  owner  of  title,  where  the 
comptroller  did  not,  upon  receipt  of  the  tax  rolls  of  the  county 
to  which  the  unorganized  county  was  attached,  compare  lands 
rendered  to  the  assessor  of  such  county  with  those  previously  ren- 
dered to  him  (the  comptroller)  by  nonresidents,  before  making 
out  his  delinquent  list  and  placing  such  value  upon  the  lands 
as  he  deemed  just  and  fair,  as  required  by  Rev.  St.  1895,  Art. 
5141,  the  statutory  direction  not  being  immaterial,  but  being 
prescribed  as  conducing  to  certainty,  and  as  tending  to  protect 
owners  of  lands  who  had  rendered  the  lands  and  paid  taxes 
thereon  to  the  collector  of  the  county  to  which  the  unauthorized 
county  was  attached,  and  those  theretofore  having  rendered  or 
paid  taxes  to  the  comptroller. 

"A  sale  of  lands  in  an  unorganized  county  for  unpaid  taxes, 
by  the  comptroller  of  public  accounts,  was  invalid  if  not  made  'in 
front  of  the  comptroller's  office  in  the  city  of  Austin,  between 
the  hours  of  8  o'clock  a.  m.  and  4  o'clock  p.  m.  of  the  day  of 
the  sale,'  as  expressly  commanded  by  Rev.  St.  1895,  Art.  5145. 

"Recital  in  a  deed  executed  by  the  comptroller  of  public  ac- 
counts, for  sales  of  land  for  taxes,  were  not  sufficient  to  establish 
performance  of  prerequisites  of  the  tax  sale,  where  the  power  of 
the  officer  was  not  shown,  since  the  power  of  the  officer  must 
be  shown  before  the  presumption  of  the  regularity  of  his  acts 
will  be  indulged  in. 

"Rev.  St.  1895,  Arts.  4266,  5147,  providing  that  'when  lands 
*  *  *  bid  in  by  the  comptroller  for  the  state  *  *  *  are 
note  redeemed  *  *  *  then  the  land  *  *  *  shall  become  va- 
cant,' does  not  divest  the  title  of  the  owner  of  lands  sold  for 
taxes  by  the  mere  fact  of  sale  by  the  comptroller,  regardless  of 

18 


274  Taxation  in  Texas. 

the  validity  of  the  sale,  since  such  article  should  be  construed 
with  the  other  articles  of  the  statute  relating  to  an  owner's  fail- 
ure to  pay  taxes,  and  will  be  held  to  have  referred  to  regular 
sales,  and  not  as  intended  to  declare  a  penalty."  Keenan  v. 
Slaughter,  108  S.  W.  703. 


CHAPTER  XXI. 

TAX  SALE. 

Sec.  Sec. 

468.  Illegal    tax    sale    res    adjudi-       471.  Omission   in   list   of   number 

cata — Interest.  of  certificate — Sale  void. 

469.  Law    of    1866 — Requirements       472.  Indefinite  description  of  land 

as  to  sale.  in    assessment    conveys    no 

470.  Condemnation     of    land     for  title. 

taxes  under  Act  June  2nd,  473.  Tax     sale — Condition     prece- 
1873,   must  first  show   that  dent — Burden  of  proof, 

there  is  no  personal  prop- 
erty. 

§  468.     Illegal  tax  sale  res  adjudicata — Interest. 

"A  judgment  setting  aside  and  canceling  certain  judgments 
foreclosing  a  tax  lien  and  vesting  title  in  the  city  to  real  estate 
sold  for  such  taxes,  from  which  no  appeal  is  taken,  is  conclu- 
sive, and  the  question  whether  the  judgments  were  properly  set 
aside  cannot  be  raised  in  an  action  against  the  city  by  a  taxpayer 
for  damages  resulting  to  him  from  a  sale  of  such  property  by  the 
city  to  an  innocent  purchaser. 

"Where  the  taxpayer's  property  is  sold  to  an  innocent  purchaser 
at  a  tax  sale  under  judgments  which  are  subsequently  set  aside, 
the  taxpayer  may  recover  from  the  city  the  value  of  the  property 
so  lost. 

"A  judgment  in  an  action  against  the  city  by  a  taxpayer  to 
set  aside  certain  judgments  and  tax  sales  by  which  the  city  ac- 
quired his  property,  in  which  the  taxpayer  does  not  seek  to 
recover  the  value  of  a  portion  of  such  property  sold  by  the  city 
to  an  innocent  purchaser,  in  whom  the  title  is  confirmed,  is  not 
an  adjudication  as  to  such  damages,  and  will  not  prevent  the 
taxpayer  from  maintaining  a  subsequent  action  against  the  city 
to  recover  the  value  of  such  property,  though  he  could  have  asked 
for  such  relief  in  the  former  suit. 

"The  plaintiff  in  such  action  is  entitled  to  interest  on  the  value 
of  the  property  from  the  date  of  its  sale  by  the  city,  though  he 
continued  in  possession  thereof  for  some  time  thereafter. 

"The  fact  that  the  purchaser  from  the  city  allowed  plaintiff  to 
remain  on  the  lands  for  some  time  after  the  former  acquired 


276  Taxation  in  Texas. 

title  from  the  city  does  not  entitle  the  city  to  offset  the  rental 
value  of  the  premises  for  that  period  against  the  damages  due 
plaintiff  resulting  from  the  wrongful  sale. 

"The  fact  that  the  judgment  includes  interest  for  a  month  and 
a  half  longer  than  the  plaintiff  is  entitled  to  does  not  authorize  a 
reversal  of  a  judgment  in  his  favor,  as  the  amount  is  too  small 
to  be  considered."  City  of  Houston  v.  Walsh,  66  S.  W.  106,  27 
Tex.  Civ.  App.  121. 

§  469.     Law  of  1866 — Requirements  as  to  sale. 

"The  law  of  1866,  under  which  Morrison  pretended  to  sell  the 
land  (Paschal's  Dig.,  Art.  7502),  required  the  assessor,  among 
other  things,  to  ^return  to  the  county  court  a  descriptive  list  of 
delinquent  taxpayers,  and  to  obtain  a  decree  of  the  county  court 
condemning  the  land  to  be  sold.  This  act  required  the  decree 
to  describe  the  land  in  such  way  as  to  .enable  any  one  interested 
to  determine  from  an  inspection  of  the  decree  what  land  was  to 
be  sold,  with  name  of  apparent  owner,  and  full  direction  to  the 
assessor  as  to  how  the  sale  should  be  made ;  and  in  view  of  the 
requirements  of  that  law  we  hold  that  the  order  of  the  county 
court,  as  disclosed  in  the  record,  was  a  nullity,  and  conferred  no 
authority  on  the  assessor  to  sell.  {Jones  v.  Taylor,  7  Tex.  240.) 
Morrison  v.  Loftin,  44  Tex.  23. 

§  470.  Condemnation  of  land  for  taxes  under  act  of  June  2, 
1873,  must  first  show  that  there  is  no  personal  prop- 
erty. 

"Under  'An  Act  providing  for  the  condemnation  and  sale  of 
land  for  delinquent  taxes"  (Pachal's  Dig.,  Art.  7775),  the  sheriff, 
on  receiving  from  the  comptroller  the  delinquent  list  for  his 
county,  and  finding  no  personal  property  belonging  to  a  delin- 
quent taxpayer,  is  required  to  certify  such  fact  to  the  district 
clerk  when  filing  the  list  with  him ;  and  the  failure  of  the  sheriff 
so  to  certify  that  he  finds  no  personal  property  will  be  fatal  to  sub- 
sequent proceedings  under  said  statute."  Belden  v.  The  State, 
46  Tex.  103. 

§  471.     Omission  in  list  of  number  of  certificates — Sale  void. 

"Plaintiff  claimed  title  to  certain  land  as  purchaser  at  tax  sales, 
but  neither  of  the  lists  by  virtue  of  which  the  land  was  sold 
gave  the  number  of  the  certificate  under  which  the  land  was 


Tax  Sale.  277 

located,  as  is  imperatively  required  by  Rev.  St.  Tex.,  Art.  4710. 
Held,  that  such  an  omission  was  fatal  to  the  proceedings,  and 
rendered  the  sale  void."  McCorntdck  v.  Edwards,  6  S.  W.  32, 
69  Tex.  106. 

§  472.  Indefinite  description  of  land  in  assessment  conveys  no 
title. 

"S.  and  C.  each  owned  an  undivided  half  interest  in  a  640- 
acre  survey.  S.  made  no  rendition,  and  paid  no  taxes  thereon  for 
1881,  but  C.  paid  the  taxes  on  320  acres.  The  assessor  returned 
on  list  of  unrendered  lands  for  1881  as  follows :  'Owner's  name, 
unknown;  abstract  number,  319;  certificate  number,  259;  num- 
ber of  acres,  640;  acres  unrendered,  320.'  The  land  was  duly 
advertised  and  sold,  and  the  tax  collector  gave  the  purchaser  a 
deed  conveying  320  acres  off  of  the  west  end  of  the  survey,  de- 
scribed by  metes  and  bounds.  Held,  that  the  deed  did  not  con- 
vey title  to  any  part  of  the  survey. 

"The  purchaser  claimed  that  as  S.  owned  one-half  of  the  land, 
and  failed  to  pay  taxes  due  on  it,  an  assessment  and  sale  of  the 
number  of  acres  he  owned  in  the  survey  invested  the  purchaser 
with  his  interest,  and  subrogated  him  to  an  undivided  one-half 
interest  in  the  land  with  C.  Held,  that  this  could  not  be  sus- 
tained ;  a  purchaser  at  a  tax  sale  is  not  entitled  to  the  assistance 
of  a  court  of  equity  to  aid  a  defective  sale  or  conveyance. 

"The  failure  of  the  assessor,  in  listing  property,  to  give  the 
survey  number  of  the  grant,  when  it  can  be  ascertained,  as  re- 
quired by  Rev.  St.  Tex.,  Art.  4711,  renders  the  proceedings  in- 
valid."   Morgan  v.  Smith,  8  S.  W.  528,  70  Tex.  637. 

§  473.     Tax  sale — Condition  precedent — Burden  of  proof. 

"A  collector  cannot  sell  land  for  taxes  of  the  unknown  owner, 
unless  all  the  requirements  of  the  law  previous  to  the  sale  have 
been  complied  with ;  and  the  burden  is  on  the  claimant  under  a 
tax  title  to  show  the  power  to  sell. 

"Where  the  sale  was  made  to  pay  both  state  and  county  taxes 
due  the  county,  the  tax  deed  was  not  admissible  to  show  title 
where  it  was  not  proved  that  the  county  commissioner's  court  had 
levied  the  tax  for  the  county,  such  levy  being  indispensable  to 
the  power  to  sell,"    # 


CHAPTER  XXII. 

TAX  DEED. 

Sec.  Sec. 

474.  Assessor   and   collector   shall      485.  All     prerequisites    must    be 

make  deed  to  purchaser  to  proved. 

property    sold     for    taxes —  486.  Deed  of  tax  collector  strictly 
Effect  of  deed — ^Right  of  re-  construed — ^Reasons    for   so 

demption,  etc.  doing. 

475.  Collector's  deed.  487.  Validity  of  tax  deed — Burden 

476.  No  evidence  of  title.  of  proof. 

477.  Prima  facie  evidence  of  what.  488.  Uncertainty    in    receipts    in 

478.  Description  of  property.  deed. 

479.  Sufficiency  of  description.  489.  Levy  must  be  shown  to  sub- 

480.  Description  in  deed.  stantiate  deed. 

481.  Deed  of  summary  sale  of  lots  490.  Acknowledgment. 

in  gross  void — When.  491.  Effect  of  the  deed  made  by 

482.  Description  void — ^When.  the   city    assessor   and    col- 

483.  Invalid.  lector  to  property  sold  for 

484.  Land  not  described.  taxes. 

§  474.  Assessor  and  collector  shall  make  deed  to  purchaser  to 
property  sold  for  taxes — Effect  of  deed — Right  of 
redemption,  etc. 

The  assessor  and  collector  shall,  when  any  property  has  been 
sold  for  the  payment  of  taxes,  make,  execute  and  deliver  a  deed 
for  said  property  to  the  person  purchasing  the  same,  and  such 
deed  shall  be  prima  facie  evidence  in  all  controversies  and  suits 
in  the  relation  to  the  right  of  the  purchaser,  his  heirs  and  assigns, 
to  the  premises  thereby  conveyed,  of  the  following  facts : 

First.  That  the  land  or  lot  or  portions  thereof  conveyed  was 
subject  to  taxation  or  assessment  at  the  time  the  same  was  ad- 
vertised for  sale,  and  had  been  listed  or  assessed  in  the  time  or 
manner  required  by  law. 

Second."  That  the  taxes  or  assessment  were  not  paid  at  any 
time  before  the  sale. 

Third.  That  the  land,  lot  or  portion  thereof  conveyed  had  not 
been  redeemed  from  the  same  at  the  date  of  the  deed,  and  shall 
be  conclusive  evidence  of  the  following  facts: 


Tax  Deed.  279 

(1)  That  the  land,  lot  or  portion  thereof  sold  was  advertised 
for  sale  in  the  manner  and  for  the  length  of  time  required  by  law. 

(2)  That  the  property  was  sold  for  taxes  or  assessments  as 
stated  in  the  deed. 

(3)  That  the  grantee  in  the  deed  was  the  purchaser. 

(4)  That  the  same  was  conducted  in  the  manner  prescribed 
by  law. 

And  in  all  controversies  and  suits  involving  the  title  to  land 
claimed  and  held  under  and  by  virtue  of  such  deed,  the  person 
claiming  title  adverse  to  the  title  conveyed  by  such  deed  shall 
be  required  to  prove,  in  order  to  defeat  such  title,  either  that 
the  land  was  not  subject  to  taxation  at  the  date  of  the  sale,  that 
the  taxes  or  assessment  had  been  paid,  that  the  land  had  never 
been  listed  or  assessed  for  taxation  and  assessment  as  required 
by  this  title  or  some  ordinance  of  the  city,  or  that  the  same  had 
been  redeemed  according  to  the  provisions  of  this  title,  and  that 
such  redemption  was  made  for  the  use  and  benefit  of  the  person 
having  the  right  of  redemption  under  the  law ;  but  no  person 
shall  be  permitted  to  question  the  title  acquired  by  the  said  deed 
without  first  showing  that  he  or  the  person  under  whom  he 
claims  title,  had  title  to  the  land  at  the  time  of  the  sale,  or  that 
the  title  was  obtained  after  the  sale,  and  that  all  taxes  due  upon 
the  lands  have  been  paid  by  such  person  or  the  person  under 
whom  he  claims  title  as  aforesaid,  provided,  however,  that  the 
owner  of  such  property  shall  have  the  right  to  redeem  the  same 
at  any  time  within  two  years  of  the  day  and  date  of  the  sale 
thereof,  upon  paying  to  the  purchaser  double  the  amount  of  taxes 
for  which  the  same  was  sold,  together  with  the  costs  of  such 
sale  and  double  the  amount  of  all  taxes  paid  by  the  purchaser 
since  such  sale.  The  assessor  and  collector  shall  have  full  power 
to  levy  upon  any  personal  property  to  satisfy  any  tax  imposed 
by  this  title ;  all  taxes  shall  be  a  lien  upon  the  property  upon 
which  they  are  assessed,  and  in  case  any  property  levied  upon  is 
about  to  be  removed  out  of  the  city,  the  assessor  and  collector 
shall  proceed  to  take  into  his  possession  so  much  thereof  as  will 
pay  the  taxes  assessed  and  costs  of  collection.  Sayles'  R.  S., 
Art.  518. 

§  475.     Collector's  deed. 

A  collector's  deed  to  property  subject  to  taxation  and  sold  in 
accordance  with  law  vests  a  good  and  perfect  title  which  can 


280  Taxation  in  Texas. 

only    be    impeached    for  actual  fraud.      Cassiano    v.    Ursuline 
Academy,  64  Tex.  673. 

§  476.     No  evidence  of  title. 

A  tax  deed  is  of  itself  no  evidence  of  title  in  the  purchaser  at  a 
tax  sale.    Pratt  v.  Jones,  64  Tex.  694. 

§  477.     Prima  facie  evidence  of  what. 

The  Act  of  March  20,  1848  (Hart.  Digest,  Sec.  3145),  pro- 
vided that  a  tax  collector's  deed  "when  recorded  according  to 
law,  shall  be  prima  facie  evidence  that  all  the  requisites  of  the 
law  have  been  complied  with  in  making  such  sale."  The  dis- 
tinction, however,  is  recognized  between  the  power  to  sell  and 
the  regularity  of  the  sale.  Though  the  statute  makes  the  as- 
sessor's deed  prima  facie  evidence  that  the  requirements  of  the 
law  have  been  complied  with  in  making  the  sale,  it  is  not  thereby 
made  evidence  of  a  compliance  with  the  prerequisites  to  the  acqui- 
sition of  the  power  to  sell;  and  that  the  statute  applies  only  to 
the  proceedings  to  be  had  after  the  right  and  power  to  sell  are 
acquired.  Terrell  v.  Martin,  64  Tex.  127;  Yenda  v.  Wheeler,  9 
Tex.  408;  Rohson  v.  Osborn,  13  Tex.  307;  Devine  v.  McCulloch, 
15  Tex.  491 ;  Kelly  v.  Medlin,  26  Tex.  56;  Taylor  v.  Boyd,,  5  Tex. 
Law  Rev.  202. 

§  478.     Description  of  property. 

A  tax  deed  made  by  the  city  tax  collector  to  the  city,  described 
the  property  as  follows:  "Original  grantee,  R.  R.  Add.  All  of 
block  23.  Abst.  77."  Such  deed  contained  no  sufficient  descrip- 
tion and  did  not  authorize  a  recovery  by  the  grantee  of  block  23 
in  the  Railroad  Addition  to  the  city  of  Henrietta,  there  being 
such  an  addition  situated  on  land  originally  granted  to  W.  G. 
Eustes.  The  description  is  lacking  in  those  elements  of  accu- 
racy and  certainty  which  are  required  in  a  conveyance  made 
by  an  officer  under  a  naked  statutory  power  to  sell  and  convey 
property  for  the  enforcement  of  the  collection  of  taxes.  Wof- 
ford  V.  McKinna,  23  Tex.  36;  Kilpatrick  v.  Sisneros,  23  Tex, 
113.  We  seriously  doubt  whether  it  be  sufficient  in  a  conveyance 
between  parties  acting  in  their  own  right.  A  portion  of  a  tract 
of  land  of  which  the  original  grantee  is  "R.  R.  Add."  or  Rail- 
road Addition  if  the  abbreviations  mean  that,  does  not  describe 
a  part  of  an  addition  to  a  city,  which  is  known  as  Railroad  Addi- 


Tax  Deed.  281 

tion,  and  of  which  W.  G.  Eustes  is  original  grantee.  It  may  be 
that  where,  even  in  a  tax  deed,  a  tract  or  lot  of  land  is  clearly 
and  accurately  described  otherwise,  descriptive  words  false  in 
one  particular  may  be  disregarded.  But  if  we  strike  out  the 
false  description  in  the  deed  in  question  we  have  substantially 
nothing  left  but  the  words,  "block  23,"  which  manifestly  is  un- 
certain. The  only  words  to  show  what  "block  23"  is  meant  point 
to  some  other  "block  23"  and  not  to  that  found  in  Eustes'  Rail- 
road Addition  to  the  city  of  Henrietta.  If  intended  to  designate 
the  latter  block,  the  description  is  false  as  a  whole,  and  the  deed 
not  sufficient  to  operate  as  a  conveyance  of  the  property  intended. 
In  a  transaction  between  private  parties  it  might,  in  a  proper 
case,  upon  proof  of  the  attending  circumstances,  give  rise  to  in- 
ferences which  would  afford  a  basis  for  a  reformation  of  the 
instrument  in  accordance  with  the  original  agreement  and  intent 
of  the  parties  thereto. 

The  purpose  of  Art.  447  was  to  make  the  tax  collector's  deed 
prima  facie  evidence  of  certain  facts,  and  to  cast  the  burden 
upon  the  party  attacking  the  sale  to  show,  as  to  certain  particu- 
lars, a  noncompliance  with  the  statute ;  and  also  to  require,  as  a 
condition  precedent  to  the  defense  that  defendant  shall  show  that 
all  taxes  upon  the  land  had  been  paid.  But  the  deed  which  is 
mentioned  in  the  article,  and  which  is  to  have  this  effect,  is  "a 
deed  to  said  property";  that  is,  a  deed  to  the  property  sold  for 
taxes ;  and  it  cannot  be  such  a  deed  unless  it  contain  a  descrip- 
tion sufficient  in  law,  of  the  property  intended  to  be  conveyed.  A 
deed  in  which  the  description  does  not  apply  to  the  property 
sold  is  not  a  deed  to  said  property,  whatever  may  have  been  the 
intent  of  the  parties  in  making  it.  So,  also,  the  latter  part  of 
the  article,  which  requires  payment  of  the  taxes  in  order  to  make 
defense,  uses  the  language  "but  no  person  shall  be  permitted  to 
question  the  title  acquired  by  said  deed,  without  first  showing, 
etc.,"  and  evidently  refers  to  the  deed  to  the  property  previously 
mentioned,  which  must  be  a  deed  which  describes  the  property. 
If  the  property  is  not  described  in  the  deed,  certainly  there  is 
neither  title  nor  color  of  title  acquired  by  such  purported  con- 
veyance.    Osee  V.  City  of  Henrietta,  90  Tex.  334. 

§  479.     Sufficiency  of  description. 

"Tax  rolls  are  sufficient  evidence  as  to  what  tax  had  been 
levied  by  the  city  council,  in  view  of  Sayles'  Civ.  St.,  Art.  446, 


282  Taxation  in  Texas. 

providing  that,  on  failure  to  pay  taxes  prescribed  by  the  ordi- 
nances, the  collector  by  virtue  of  such  rolls,  shall  levy  on  and 
sell  the  property  taxed,  and  Art.  4737,  providing  that  such  rolls 
are  sufficient  authority  for  the  collector  to  receive  and  collect 
taxes."  Earle  v.  City  of  Henrietta,  41  S.  W.  728;  Homes  v. 
City  of  Henrietta,  41  S.  W.  728. 

§  480.     Description  in  deed. 

"The  question  presented,  and  the  only  one,  in  our  view  of  the 
law,  necessary  to  be  considered,  is  whether  or  not  the  court  erred 
in  holding  the  deed  insufficient  in  the  matter  of  description.  The 
distinction  which  seems  to  have  been  recognized  by  the  earlier 
decisions  in  respect  to  the  sufficiency  of  description,  between 
deeds  executed  by  officers  under  a  decree,  and  those  between 
individuals,  have  been  disapproved  by  later  rulings  in  this  state ; 
and  it  now  held  that  a  description  which  can  be  made  to  identify 
land  by  proper  extrinsic  testimony  is  alike  sufficient  in  either  case. 
It  is  difficult  to  see  any  good  reason  why  a  sheriff's  or  adminis- 
trator's deed  should,  in  this  respect,  be  any  different  from  ordi- 
nary conveyances.  Hertnann  v.  Likens,  90  Tex.  449,  39  S.  W. 
282;  Macmanus  v.  Orkney,  91  Tex.  33,  40  S.  W.  715;  Focke  v. 
Garcia,  (Tex.  Civ.  App.)  41  S.  W.  187;  Watson  v.  McClane, 
(Tex.  Civ.  App.)  45  S.  W.  176.  It  appears  here  that  plaintiff 
at  the  date  of  her  pleading  owned  in  the  northern  part  of  the 
survey  a  specific  tract  of  380  acres.  It  appears  from  a  deed  in 
evidence  that  in  1881  she  became  the  owjier  of  a  claim  to  an 
undivided  one-fourth  of  the  north  half  of  the  survey.  The  pur- 
chaser at  the  foreclosure  sale  would  be  entitled,  under  said 
sheriff's  deed,  as  against  plaintiff,  to  what  it  called  for — 364 
acres  in  the  north  half  of  the  tract — according  to  what  interest 
she  had  in  the  north  half  at  the  date  of  foreclosure  proceeding." 
Murphy  v.  Williams,  56  S.  W.  694. 

Must  be  such  that  the  land  can  be  identified  with  reasonable 
certainty.    Hubhard  v.  Arnold,  2  U.  R.  C.  327. 

Insufficient  description  of  land  in  a  tax  roll  renders  them  inad- 
missible to  support  a  tax  deed.  Moses  v.  McFarlin,  2  U.  R.  C. 
291.* 

§  481.     Deed  of  summary  sale  of  lots  in  gross  void  when. 

Where  several  lots  are  separately  assessed  to  the  same  person, 
they  must  be  sold,  and  a  tax  deed  showing  a  sale  in  gross  for  the 


Tax  Deed.  283 

taxes  due  on  all  is  void.    Allen  v.  Courtney,  58  S.  W.  200,  24  Tex. 
Civ.  App.  86. 

§  482.     Description  void  when. 

A  tax  deed  is  void  in  which  the  only  description  of  the  land 
is  "787  acres  of  land  granted  the  S.,"  and  is  avoided  for  all  pur- 
poses by  the  grantee's  procuring  the  county  surveyor  to  survey 
the  land,  and  to  insert  his  field  notes  in  the  tax  deed  as  a  part  of 
the  description.    Claiborne  v.  Elkins,  15  S.  W.  395,  79  Tex.  380. 

A  tax  deed  which  conveys  4,000  acres  of  land  lying  in  the 
shape  of  a  square,  out  of  a  certain  survey,  is  void  where  it  ap- 
pears that  according  to  the  survey  it  was  impossible  to  lay  off 
4,000  acres  in  the  form  of  a  square,  and  deeds  from  the  grantee 
of  part  of  the  land  so  conveyed  described  as  a  fractional  part  of 
the  4,000  acres  are  also  void.  Amnions  v.  Dwyer,  15  S.  W.  1049, 
78  Tex.  639. 

§483.     Invalid. 

A  tax  deed  which  shows  no  authority  for  the  tax  sale  confers 
no  title.    Latimer  v.  Logicood,  27  S.  W.  960. 

§  484.     Land  not  described. 

Sayles  Civ.  St.,  Art.  447,  providing  that,  when  property  is  sold 
for  taxes,  "a  deed  for  said  property"  shall  be  given  to  the  pur- 
chaser, which  shall,  in  all  controversies  relative  to  his  right  to 
"the  premises  thereby  conveyed,"  be  prima  facie  evidence  of  cer- 
tain facts ;  casting  the  burden  on  the  party  attacking  the  sale  to 
show,  as  to  certain  particulars,  noncompliance  with  the  statute, 
and  prohibiting  the  questioning  of  the  "title  acquired  by  said 
deed"  without  showing  that  all  taxes  on  the  land  have  been  paid 
— does  not  apply  to  a  suit  on  a  tax  deed  for  land  not  described  by 
it."    Osee  v.  City  of  Henrietta,  38  S.  W.  768,  90  Tex.  334. 

A  tax  deed  which  does  not  give  such  description  of  the  land 
conveyed  thereby  as  will  identify  it  is  invalid  and  inadmissible 
in  evidence.    Waters  v.  Spofford,  58  Tex.  116. 

§  485.     All  prerequisites  must  be  proved. 

The  declaration  in  the  25th  section  of  the  tax  law  of  1840 
(Hart.  Dig.,  Art.  3007)  that  the  tax  deed  should  be  good  and 
effectual,  both  in  law  and  equity,  must  be  regarded  as  giving  no 
special  sanction  to  the  conveyance  beyond  that  derived  from  the 
general  principles  of  law.     (But,  quere?    If  the  doctrine  had  not 


284  Taxation  in  Texas. 

been  firmly  established.)     And  hence,  notwithstanding  that  pro- 
vision, it  is  necessary  for  a  plaintiff  claiming  under  a  tax  sale 
made  by  virtue  of  that  law  to  allege  and  prove  that  all  the  pre- 
requisites were  performed.     Hadley  v.  Tankersley,  8  Tex.   12 
Yemia  v.  Wheeler,  9  Tex.  408;  Robson  v.  O shorn,  13  Tex.  298 
Devine  v.  McCulloch,  15  Tex.  488;  Wofford  v.  McKenna,  23  Tex 
2)6 ;  Kelly  v.  Medlin,  26  Tex.  48 ;  Davis  v.  Fames,  26  Tex.  296 
Clayton  v.  Rhem,  67  Tex.  52 ;  Meredith  v.  Coker,  65  Tex,  29 
Colder  v.  Ramsey,  66  Tex.  218. 

§  486.     Deed  of  tax  collector  strictly  construed — Reasons  for 
so  doing. 

To  what  boundaries,  then,  is  the  defendant  entitled  to  claim, 
by  virtue  of  his  five  years'  possession  under  the  deed?  But  the 
description  is  uncertain  in  itself.  From  its  terms  it  is  uncertain 
in  what  form  the  land  is  to  be  taken.  Neither  the  owner  of  the 
land,  the  party  in  possession,  nor  the  court,  can  know  from  the 
face  of  the  deed,  what  are  the  boundaries  of  the  claim.  The 
deed  manifestly  is  void  for  uncertainty  in  the  description  of  the 
premises,  unless  it  can  be  aided  by  matter  extrinsic  of  itself.  If 
it  were  a  contract  or  conveyance  between  individuals,  this  un- 
questionably might  be  done,  and  effect  given  to  the  contract  or 
conveyance.  In  a  contract  between  individuals  if  a  latent  ambig- 
uity exists  in  the  description  of  the  land,  parol  evidence  is  resorted 
to  for  the  purpose  of  explaining  it,  and  giving  effect  to  the  inten- 
tion of  the  parties ;  and  where  the  estate  intended  to  be  conveyed 
is  sufficiently  described  in  the  instrument,  the  addition  of  a  cir- 
cumstance, false  or  mistaken,  will  be  rejected  as  surplusage  in 
order  to  carry  the  intention  into  effect.  But  the  law  in  respect 
to  the  class  of  titles  to  which  the  present  belongs,  is  settled  other- 
wise by  the  whole  current  of  decisions,  both  in  the  federal  and 
state  courts.  (Blackwell  on  Tax  Titles,  450,  451  et  seq.,  and  nu- 
merous cases  cited  in  the  text.)  "A  description  sufficiently  cer- 
tain to  convey  land  between  man  and  man,  and  which,  if  con- 
tained in  an  agreement  to  convey,  would  authorize  a  court  of 
equity  to  decree  a  specific  execution,  will  not  answer  in  the  pro- 
ceedings to  enforce  the  collection  of  a  tax."     (Blackwell,  152.) 

A  grant  by  the  owner  of  a  certain  number  of  acres  in  a  particu- 
lar tract  would  confer  a  right  of  election  upon  the  grantee,  and 
authorize  him  to  locate  the  quantity  in  any  part  of  the  tract  he 


Tax  Deed.  285 

saw  proper  to  elect,  upon  the  principle  that  a  conveyance  must  be 
held  to  pass  some  interest,  if  such  effect  may  be  given  to  it,  con- 
sistently with  the  rules  of  law,  and  that,  if  uncertain  or  ambig- 
uous, it  must  be  construed  most  strongly  against  the  grantor. 
But  in  this  respect,  it  is  said,  there  is  a  wide  difference  between 
the  conveyance  of  the  owner  and  a  public  officer.  The  former 
may  sell  upon  his  own  terms,  and  may  confer  a  right  of  election 
upon  his  grantee.  But  power  to  grant  such  a  right  is  not  con- 
ferred upon  the  officer  of  the  law.  He  is  the  mere  instrument  to 
pass  the  title.  He  acts  under  a  special  apd  limited  authority,  con- 
ferred by  the  law,  and  not  by  the  owner  of  the  estate.  In  this 
proceeding  the  owner  "has  nothing  to  do — he  intends  nothing; 
the  government  is  acting  through  its  agent  in  hostility  to  him." 
The  proceeding  is  construed  strictly ;  and  parol  evidence  is  not 
admitted  to  explain  a  latent  ambiguity  in  the  description,  or  to 
locate  the  land.  If  the  description  by  the  officer  be  not  so  certain 
and  complete  as  not  to  require  the  aid  of  extrinsic  evidence,  his 
deed  is  held  to  be  void.  (Blackwell,  156,  2  Ham.  287;  Ewing 
V.  Helm,  13  Serg.  &  Rawle  151,  13  How.  23.)  Such  is  the  strict- 
ness of  construction  which  has  been  applied  to  the  proceedings 
in  the  sale  of  land  for  taxes;  upon  which  Mr.  Blackwell  in  his 
treatise  upon  the  law  of  tax  titles,  observes,  "As  things  now 
stand,  a  tax  title  is  no  title  at  all.  Out  of  the  numerous  sales 
made  under  the  acts  of  congress,  between  the  years  1800  and 
1818,  not  a  single  one  has  been  sustained;  and  not  exceeding  ten, 
under  the  laws  of  the  several  states,  out  of  at  least  twelve  hun- 
dred which  have  found  their  way  to  the  superior  courts  of  the 
country.  (Blackwell,  345.)  Such  has  been  the  course  of  de- 
cision in  the  federal  and  state  courts;  and  whatever  may  be 
thought  of  the  reasons  upon  which  the  doctrine  of  the  decisions 
is  founded,  it  is  too  firmly  established  to  be  now  overthrown." 
Wofford  V.  McKinna,  23  Tex.  44. 

§  487.     Validity  of  tax  deed — Burden  of  proof. 

In  trespass  to  try  title  in  Texas,  where  plaintiff  avers  that  de- 
fendants are  setting  up  claim  to  the  land  under  tax  sales  alleged 
to  be  void,  put  a  cloud  on  plaintiff's  title,  the  burden  of  proof 
does  not  rest  on  plaintiff  to  show  that  the  proceedings  under 
which  the  lands  were  sold  for  taxes  were  invalid.  Dawson  v. 
Ward,  9  S.  W.  106,  71  Tex.  72. 


286  "^  Taxation  in  Texas. 

§  488.     Uncertainty  in  receipts  in  deed. 

In  an  action  to  recover  80  acres  of  land  claimed  by  defendant 
under  a  tax  deed,  the  tax  rolls  showed  an  assessment  on  160 
acres  belonging  to  an  unknown  owner;  and  the  proof  showed 
the  payment  by  one  H.  of  one-half  of  the  tax  assessed  against 
the  whole  tract.  The  tax  deed  purported  to  convey  all  of  the  160 
acres  except  80  acres  upon  which  H.  had  paid  the  taxes.  Held, 
that  it  did  not  sufficiently  appear  what  lands  were  sold,  or  that 
the  taxes  upon  the  land  sold  had  not  been  paid,  and  that  the 
tax  deed  was  void. 

It  is  the  duty  of  the  assessor  to  exhaust  all  available  means  of 
knowledge  before  he  is  excused  from  compliance  with  the  stat- 
utory requirement  that,  in  listing  the  property,  the  number  of 
the  certificate  under  which  it  was  located  shall  be  given ;  and 
where  the  tax  rolls  fail  to  show  the  number  of  such  certificate, 
and  the  assessor  only  looked  for  it  upon  the  abstract  of  titles, 
and  failed  to  examine  the  accessible  records  of  the  general  land- 
office,  and  of  the  county  surveyor's  office,  a  tax  sale  thereunder 
is  void.    Henderson  v.  White,  5  S.  W.  374,  69  Tex.  103. 

§  489.     Levy  must  be  shown  to  substantiate  deed. 

A  defense  to  an  action  of  ejectment  of  a  tax  deed  based  on  a 
sale  for  state  and  county  taxes  is  effective,  in  the  absence  of  proof 
of  a  levy  of  a  county  tax.  Moody  v.  Strong,  100  S.  W.  801,  45 
Tex.  Civ.  App.  256. 

§  490.     Acknowledgment. 

Rev.  St.,  Arts.  4309,  4312,  provide  that  the  certificate  of 
acknowledgment  of  a  deed  shall  state  substantially  that  the  per- 
son making  the  acknowledgment  is  known  to  the  officer  taking  it 
to  be  the  person  who  executed  the  deed.  Held,  that  where  a  tax 
deed  is  signed,  "B.,  Tax  Collector  of  C.  County,"  a  certificate 
reciting  "Personally  appeared  B.,  tax  collector  of  said  county,  to 
me  well  known  and  acknowledged,"  etc.,  is  sufficient.  Schleicher 
V.  Gatlin,  20  S.  W.  120,  85  Tex.  270. 

§  491.     Effect  of  the  deed  made  by  the  city  assessor  and  col- 
lector to  property  sold  for  taxes. 

The  assessor  and  collector  shall,  when  any  property  has  been 
sold  for  the  payment  of  taxes,  make,  execute  and  deliver  a  deed 
for  said  property  to  the  person  purchasing  the  same,  and  such 


Tax  Deed.  287 

deed  shall  be  prima  facie  evidence  in  controversies  and  suits  in 
relation  to  the  right  of  the  purchaser,  his  heirs  and  assigns,  to 
the  premises  thereby  conveyed,  of  the  following  facts : 

First — That  the  land  or  lot  or  portion  thereof  conveyed  was 
subject  to  taxation  or  assessment  at  the  time  the  same  was  adver- 
tised for  sale,  and  had  been  listed  or  assessed  in  the  time  or  man- 
ner required  by  law. 

Second — That  the  taxes  or  assessment  were  not  paid  at  any 
time  before  the  sale. 

Third — That  the  land,  lot,  or  portion  thereof  conveyed  had 
not  been  redeemed  from  the  sale  at  the  date  of  the  deed,  and 
shall  be  conclusive  evidence  of  the  following  facts : 

( 1 )  That  the  land,  lot  or  portion  thereof  sold  was  advertised 
for  sale  in  the  manner  and  for  the  length  of  time  required  by 
law. 

(2)  That  the  property  was  sold  for  taxes  or  assessments  as 
stated  in  the  deed. 

(3)  That  the  grantee  in  the  deed  was  the  purchaser. 

(4)  That  the  sale  was  conducted  in  the  manner  prescribed 
by  law. 

And  in  all  controversies  and  suits  involving  the  title  to  land 
claimed  and  held  under  and  by  virtue  of  such  deed,  the  person 
claiming  title  adverse  to  the  title  conveyed  by  such  deed  shall 
be  required  to  prove,  in  order  to  defeat  said  title,  either  that  the 
land  was  not  subject  to  taxation  at  the  date  of  the  sale,  that  the 
taxes  or  assessment  had  been  paid,  that  the  land  had  never  been 
listed  or  assessed  as  required  by  this  title  or  some  ordinance  of 
the  city,  or  that  the  same  had  been  redeemed  according  to  the 
provisions  of  this  title,  and  that  such  redemption  was  made  for 
the  use  and  benefit  of  the  person  having  the  right  of  redemption 
under  the  law ;  but  no  person  shall  be  permitted  to  question  the 
title  acquired  by  the  said  deed  without  first  showing  that  he,  or 
the  person  under  whom  he  claims  title,  had  title  to  the  land  at 
the  time  of  the  sale,  or  that  the  title  was  obtained  after  the  sale, 
and  that  all  taxes  due  upon  the  lands  have  been  paid  by  such 
person  or  the  person  under  whom  he  claims  title  as  aforesaid, 
provided,  however,  that  the  owner  of  such  property  shall  have 
the  right  to  redeem  the  same  at  any  time  within  two  years  of  the 
day  and  date  of  the  sale  thereof,  upon  paying  to  the  purchaser 
double  the  amount  of  taxes  for  which  the  same  was  sold,  together 


288  Taxation  in  Texas. 

with  the  costs  of  such  sale  and  double  the  amount  of  all  taxes 
paid  by  the  purchaser  since  such  sale.  The  assessor  and  col- 
lector shall  have  full  power  to  levy  upon  any  personal  property  to 
satisfy  any  tax  imposed  by  this  title;  all  taxes  shall  be  a  lien 
upon  the  property  upon  which  they  are  assessed,  and  in  case  any 
property  levied  upon  is  about  to  be  removed  out  of  the  city,  the 
assessor  and  collector  shall  proceed  to  take  into  his  possession  so 
much  thereof  as  will  pay  the  taxes  assessed  and  costs  of  collec- 
tion.    R.  S.,  Art.  518. 

( 1 )  The  provisions  of  this  article  do  not  apply  to  a  suit  on  a 
tax  deed  for  land  and  not  described  by  it.  Ozee  v.  City  of  Hen- 
rietta, 38  S.  W.  768. 

(2)  In  so  far  as  this  article  makes  the  payment  of  taxes  by 
the  owner  to  the  city,  or  to  one  who  has  purchased  at  a  void 
sale  or  claims  the  property  under  a  void  deed,  a  condition  prece- 
dent to  his  resisting  the  claim  made  upon  his  property  under  such 
void  proceeding,  it  is  unconstitutional.  Eustis  v.  City  of  Hen- 
rietta, 39  S.  W.  567,  90  Tex.  468. 


CHAPTER  XXIII. 

PURCHASER  AT  TAX  SALE. 

Sec.  Sec. 

492.  Void   sale—Conditions  of  re-       499.  Not      innocent      purchaser— 

lief.  When. 

493.  Sale  of  taxes — Notice,  500.  Acquired  no  title  against  one 

494.  Burden     of     proof     different  in  possession  not  a  party  to 

where  party  is  in  court.  suit. 

495.  Possession    pending    redemp-       501.  Legality    of     partnership    to 

tion.  purchase  at  tax  sale. 

496.  Purchase  by  owner.  502.  Right  to  question  title  with- 

497.  Equitable  lien  for  taxes  paid.  out'  payment  of  taxes. 

498.  Not  entitled  to  refund  under 

void  judgment. 

§  492.     Void  sale — Conditions  of  relief. 

Where  a  judgment  for  taxes,  and  a  sale  of  land  thereunder 
were  void  for  want  of  service  of  process  on  resident  owners, 
such  owners  on  moving  to  set  aside  the  judgment  and  sale,  were 
only  required  to  tender  the  taxes  and  costs  justly  chargeable  to 
them  in  the  suit,  and  it  was  error  for  the  court  on  setting  aside 
the  sale,  to  charge  the  premises  with  a  lien  in  favor  of  the  pur- 
chaser for  the  amount  of  his  bid  at  the  sheriff's  sale,  thereby 
casting  on  the  owners  the  cost  of  citation,  sale,  etc.  Crosby  v. 
Terry,  91  S.  W.  652,  41  Tex.  Civ.  App.  594. 

§  493.     Sale  for  taxes — Notice. 

The  posting  of  a  written  notice  of  sale  for  taxes  in  the  United 
States  mails,  properly  stamped  and  addressed  to  the  defendant 
in  a  suit  for  taxes,  is  a  sufficient  compliance  with  Sayles  Ann. 
Civ.  Stat.  1897,  Art.  2366,  requiring  the  officer  making  the  levy 
to  give  the  defendant  or  his  attorney  written  notice  of  the  sale, 
either  in  person  or  by  mail,  though  the  notice  was  never  actually 
received  by  the  defendant.  Rogers  v.  Moore,  94  S.  W.  113,  100 
Tex.  220. 

Under  Art.  2366  of  R.  S.  Stat,  the  sheriff  must  give  the  de- 
fendant twenty  days'  notice  in  person  of  sale.  Bean  v.  City  of 
Broumwood,  45  S.  W.  897,  91  Tex.  684. 

Under  Sayles  Ann.  Civ.  St.  1897,  Art.  6232h,  providing  that 
a  sheriff's  deed  for  taxes  shall  be  held  in  any  court  of  law  or 
19 


290  Taxation  in  Texas. 

equity  in  this  state  to  vest  a  perfect  title,  subject  to  be  impeached 
only  for  actual  fraud,  the  validity  of  a  tax  deed  is  not  affected 
by  failure  of  the  sheriff  to  give  to  the  owner  the  notice  required 
by  statute;  his  remedy  being  against  the  officer  personally.  Rog- 
ers V.  Moore,  94  S.  W.  113,  100  Tex.  220;  Sayles  Ann.  Civ.  St. 
1897,  Art.  22>79;  Howard  v.  North,  5  Tex.  290,  51  Am.  Dec.  769; 
Sydnor  v.  Roberts,  13  Tex.  598,  65  Am.  Dec.  84;  Harle  v.  Lang- 
don's  Heirs,  60  Tex.  555 ;  Morris  v.  Hastings,  70  Tex.  26,  7  S. 
W.  649. 

§  494.     Burden  of  proof  different  where  party  is  in  court. 

The  rule  requiring  purchasers  at  tax  sale  to  show  the  strictest 
compliance  with  every  formality,  refers  to  ex  parte  sales  by  the 
tax  collector  and  not  to  sales  under  valid  judgments  in  courts  of 
competent  jurisdiction  where  the  delinquent  taxpayer  has  had  his 
day  in  court.  Lphadie  v.  Dean,  47  Tex.  102;  Osee  v.  City  of 
Henrietta,  90  Tex.  338. 

§  495.     Possession  pending  redemption. 

The  owner  of  land  sold  for  delinquent  taxes  is  entitled  to  pos- 
session during  the  two  years  allowed  him  for  redemption  under 
the  statute.  The  owner  may  redeem  by  paying  double  the 
amount,  hence  it  was  not  contemplated  that  the  purchaser  should 
receive  this  sum  and  be  entitled  to  the  revenues  of  the  property 
also,  which  the  right  of  possession  would  carry.  Masterson  v. 
State,  17  Tex.  Civ.  App.  94. 

§  496.     Purchase  by  owner. 

A  purchase  made  by  one  whose  duty  it  was  to  pay  the  taxes 
shall  operate  as  payment  of  the  taxes  only.  Cooley  on  Taxation, 
501. 

A  tax  lien  can  not  be  defeated  by  the  owner  permitting  the  land 
to  be  sold  and  buying  it  in.  The  money  that  he  pays  for  the  land 
is  simply  treated  as  a  payment  upon  the  taxes,  that  he  should 
have  paid  before  the  sale.  Texarkana  Water  Co.  v.  State,  35  S. 
W.  788. 

§  497.     Equitable  lien  for  taxes  paid. 

A  life  tenant  of  an  undivided  interest  in  lands  failed  to  pay  the 
taxes.  A  third  person  purchased  the  land  at  a  suit  against  the 
life  tenant  for  delinquent  taxes.  Held,  that  the  third  person  held 
the  land  as  a  tenant  in  common  with  the  other  owners  of  the  land, 


Purchaser  at  Tax  Sale.  291 

and  his  payment  of  taxes  gave  him  at  most  an  equitable  Hen  on 
the  interests  of  his  co-tenants  for  the  taxes  paid  on  the  part  of 
the  property  not  included  in  life  tenant's  estate.  Niday  v.  Coch- 
ran, 93  S.  W.  1027,  42  Tex.  Civ.  App.  292. 

§  498.     Not  entitled  to  refund  under  void  judgment. 

The  holder  of  a  tax  title  based  on  a  decree  which  was  void 
as  being  in  excess  of  the  jurisdiction  of  the  court  was  not  entitled 
to  have  the  owner  of  the  land  refund  him  the  money  paid  on  ac- 
count of  taxes,  especially  where  he  made  no  examination  either 
in  person  or  by  attorney  of  the  proceedings  in  the  tax  suit. 
Schaffer  v.  Davidson,  97  S.  W.  858,  44  Tex.  Civ.  App.  100. 

Plaintiff,  in  an  action  of  trespass  to  try  title  to  land  purchased 
at  a  tax  sale,  prayed  that  if  he  were  not  allowed  to  recover  the 
property,  then  he  be  adjudged  to  have  a  lien  for  the  taxes  so  paid, 
and  that  his  lien  be  foreclosed.  The  tax  sale  was  void.  Held, 
that  plaintiff  could  not  recover  the  taxes  lawfully  assessed  upon 
the  land  and  paid  by  his  purchase. 

Plaintiff  purchased  land  at  a  void  tax  sale.  Held,  that  he  could 
not  recover  money  paid  by  him  to  redeem  the  land  from  a  former 
sale  to  the  state.  It  was  the  voluntary  payment  of  a  stranger, 
and  entitled  him  to  no  equity.  McCormick  v.  Edwards,  6  S.  W. 
32,  69  Tex.  106. 

§  499.     Not  innocent  purchaser  when. 

A  purchaser  of  land  subject  to  state  tax  lien  was  not  an  inno- 
cent purchaser  where  the  description  of  the  property  on  the  tax 
rolls  was  sufficient  to  identify  the  same  and  the  delinquent  rolls 
showed  that  the  taxes  had  not  been  paid.  Haynes  v.  State,  99  S. 
W.  405,  44  Tex.  Civ.  App.  492. 

§  500.     Acquired  no  title  against  one  in  possession  not  a  party 
to  suit. 

Where  property  was  sold  for  taxes,  if  the  tax  deed  was  valid, 
it  passed  only  such  title  as  the  real  owner,  at  the  time  the  assess- 
ment was  made,  had  at  the  time  of  the  sale,  and  the  purchaser 
stood  in  relation  to  persons  having  no  title,  but  in  possession  un- 
der claim  of  right,  with  no  notice  of  the  sale,  just  as  the  real 
owner  would  have  stood  if  there  had  been  no  sale,  since  own- 
ership of  the  land,  as  against  those  claiming  adversely  to  the  un- 
known owner,  is  not  vested  in  the  purchaser  by  Const.,  Art.  8, 


292  Taxation  in  Texas. 

Sec.  13,  embraced  substantially  in  Rev.  St.  1895,  Art.  5232h, 
providing  that  the  tax  deed  shall  be  held  to  vest  a  perfect  title  in 
the  purchaser,  subject  to  be  impeached  only  for  actual  fraud,  and 
Rev.  St.  1895,  Art.  5232b,  providing  that  the  taxes  on  all  lands 
returned  delinquent,  or  reported  sold  to  the  state,  city,  or  town, 
for  taxes  thereon  since  January  1,  1885,  or  on  lands  which  may 
hereafter  be  so  returned  or  reported  sold  shall  remain  a  lien  on 
the  land,  though  the  owner  be  unknown,  or  though  it  be  listed 
in  the  name  of  a  person  not  the  actual  owner,  and  though  the 
ownership  be  changed,  the  land  may  be  sold,  under  the  judg- 
ment of  the  court,  for  all  taxes,  etc.,  shown  to  be  due  by  such  as- 
sessment for  any  preceding  years ;  and  hence,  where,  at  the  time 
land  was  purchased  at  a  tax  sale,  defendants  had  been  in  adverse 
possession  thereof  for  years,  and  with  no  notice  of  any  sale,  con- 
tinued thereafter  in  adverse  possession  for  the  statutory  period  of 
ten  years,  the  purchaser's  grantee  was  barred  from  recovery  of 
possession.    Patton  v.  Minor,  117  S.  W.  920. 

§  501.     Legality  of  partnership  to  purchase  at  tax  sale. 

A  partnership  formed  for  the  purpose  of  buying  land  at  tax 
sales  is  not  of  itself  unlawful,  where  it  does  not  appear  that  it 
tended  to  prevent  competition,  or  to  prevent  fair  sale.  Dawson 
V.  Ward,  9  S.  W.  106,  71  Tex.  72. 

§  502.     Right  to  question  title  without  payment  of  taxes. 

In  case  of  a  purchase  by  a  city  at  a  void  tax  sale,  the  owner 
can  not  question  the  title  acquired,  without  showing  the  payment 
of  all  taxes;  Rev.  St.,  Art.  447,  providing  that  no  person  may 
question  such  title  without  first  showing  payment  of  all  taxes  due. 
City  of  Henrietta  v.  Eustis,  26  S.  W.  619,  87  Tex.  14. 


CHAPTER  XXIV. 

PURCHASER  IN  GOOD  FAITH. 

Sec.  Sec. 

503.  Right   to   have   amount  paid       505.  Purchaser    of   property   with 

refunded.  taxes  due. 

504.  Purchaser  in  good  faith. 

§  503.     Right  to  have  amount  paid  refunded. 

If  the  defendant  in  good  faith  bought  the  land  at  a  sale  for 
taxes,  which  he  neither  knew,  nor  by  proper  diligence  might 
have  known,  to  be  invalid,  and  by  his  purchase,  paid  taxes  which 
were  a  valid  charge  on  the  land,  we  are  not  prepared  to  say  that 
the  court  should  have  allowed  the  owners  the  equitable  relief  of 
canceling  the  tax  deed  without  requiring  them  to  refund  the  pay- 
ments of  which  they  had  received  the  benefit.  We  have,  however, 
been  cjted  to  no  case  where  such  a  rule  has  been  enforced,  as  to 
sale  for  taxes,  in  the  absence  of  some  statutory  provision  on  the 
subject. 

In  Blackwell  on  Tax  Titles  (3d  ed.,  p.  491)  it  is  said  that  a 
court  of  chancery  will  impose  terms  upon  the  complainant  in 
granting  relief,  and  a  case  is  cited  from  Ohio,  where  the  court 
set  aside  a  tax  sale  for  fraud,  but  required  the  complainants  to 
"refund  the  purchase  money  and  interest,  with  the  penalty  of 
fifty  per  cent  allowed  by  law."  Dudley  v.  Little,  2  Hammond, 
509.  From  the  language  used  it  may  be  inferred  that  there  was 
a  statute  in  Ohio  on  which  the  decision  was  based,  and  that  infer- 
ence is  strengthened  when  it  is  found  that  there  was  such  a  stat- 
ute there  a  few  years  later.  See  Blackwell  on  Tax  Titles,  p.  492 ; 
Gillette  v.  Webster,  15  Ohio,  623. 

In  the  case  of  Oshorn  v.  Rohson,  a  purchaser  at  a  tax  sale 
was  denied  compensation  for  improvements,  on  the  ground  that 
he  either  knew,  or  might  have  known,  the  invalidity  of  the  sale. 
13  Tex.  307.  So  here  it  would  seem  that  the  defendant  ought  to 
have  known  that  the  judgment  of  condemnation  was  a  nullity, 
and  in  buying  at  a  tax  sale  under  such  a  judgment  did  not  so 
act  in  good  faith  as  to  give  him  an  equitable  right  to  be  recom- 


294  Taxation  in  Texas. 

pensed  on  losing  the  land.  See  Cooley  on  Taxation,  Chap.  17; 
also  p.  544;  Polk  v.  Rose  et  al,  25  Md.  153.  Stewart  v.  Kemp, 
54  Tex.  252. 

In  Howard  v.  North,  5  Tex.  290-317,  a  full  discussion  of  some 
phases  of  the  question  will  be  found.  The  court  there  held  that 
the  sheriff's  sale  and  deed  were  void,  and  added:  "But  here  an 
important  question  arises,  as  to  the  effect  which  this  decision, 
avoiding  the  sale  and  conveyance,  should  in  law,  and  according 
to  the  course  of  our  system  of  procedure,  have  on  the  rights  of 
the  parties.  We  have  repeatedly  determined  that  the  legal  and 
equitable  rights  of  parties  litigant,  in  relation  to  the  subject  mat- 
ter of  a  controversy,  should  as  far  as  practicable  be  set  up  and 
determined  in  a  single  suit,"  etc.,  etc.  "That  he  (defendant) 
should  not  be  compelled  to  restore  possession  until  the  purchase 
money,  which  he  had  paid  for  the  benefit  of  the  plaintiffs,  and  by 
which  the  judgment  against  them  had  been  discharged,  should  be 
reimbursed  and  he  indemnified.  There  is  no  charge,  nor  any  pre- 
tense or  evidence,  that  the  defendant  has  been  guilty  of  any 
fraud  in  the  transaction."  And  in  the  further  discussion  of  that 
case  the  court  says :  "His  equity  rests,  not  upon  the  want  of 
knowledge  as  to  title  in  the  property,  but  on  the  ground  of  his  hav- 
ing discharged  a  judgment  against  the  defendant,  for  which  he 
stood  chargeable  by  a  purchase  made  under  the  coercive  process 
of  the  law,  and  therefore  has  an  equitable  claim  to  reimbursement 
by  the  defendant  in  execution."  This  case  is  approvingly  cited  in 
the  case  of  Horan  v.  Wafirenberger,  9  Tex.  313. 

The  case  of  Baily  v.  White,  13  Tex.  114,  is  where  the  defend- 
ant in  the  execution  brought  suit  to  set  aside  the  sheriff's  sale 
and  for  the  recovery  of  the  land  from  the  purchaser.  The  court 
held  the  judgment  was  valid,  but  that  the  execution  and  sale  was 
void,  and  that  the  purchaser  was  entitled  to  recover  the  pur- 
chase money  paid  by  him,  and  for  the  value  of  improvements 
put  upon  the  land.  In  the  discussion  of  that  case  the  court  says : 
"Where  a  sale  has  been  made  on  an  invalid  e^jecution,  issued  on 
a  valid  judgment,  and  the  money  paid  has  been  applied  to  the 
satisfaction  of  the  judgment,  and  there  has  been  no  fraud,  the 
purchaser  will  not  be  compelled  to  restore  the  property  purchased 
until  reimbursed  the  amount  paid  by  him." 

Andrews  v.  Richardson,  21  Tex.  297,  is  a  case  where  the  pur- 
chaser at  judicial  sale  brought  suit  to  enjoin  a  writ  of  possession 


Purchaser  in  Good  Faith.  295 

against  his  tenant,  issued  by  a  justice  court,  and  the  defendants 
in  their  answer  sought  to  avoid  the  sale  on  the  ground  that  there 
had  been  no  appraisement  as  required  by  law.  And  by  way  of 
replication  the  plaintiff  asked,  that  if  for  any  cause  the  sale  should 
be  adjudged  invalid,  that  then  he  be  reinstated  in  his  original  right 
in  the  decree  of  foreclosure,  and  that  he  have  execution".  The 
court  held  that  the  sale  was  valid,  but  said  that  if  it  was  not,  the 
plaintiff  would  have  been  clearly  entitled  to  the  relief  sought  pro- 
vided he  was  the  beneficial  owner  of  the  judgment;  but  if  not 
the  owner  of  the  judgment,  he  would  have  been  entitled  to  be  re- 
imbursed for  the  money  he  had  paid. 

The  defendant  in  the  void  execution  brought  suit  to  set  aside 
the  sale.  In  Herndon  v.  Rice,  21  Tex.  455,  the  court  held  the 
sale  void,  and  remarked,  "But  Herndon,  having  paid  forty-one 
dollars  in  satisfaction  of  Rice's  debt,  should  not  the  court  decree 
this  money  to  be  refunded  ?" 

In  McDonough  v.  Cross,  40  Tex.  285,  the  court  used  this  lan- 
guage: "It  consequently  follows,  that  appellant  McDonough  ac- 
quired no  title  or  interest  in  the  land  by  his  purchase  at  execu- 
tion sale.  As  he  discharged,  however,  a  valid  judgment  debt 
against  the  estate,  which  was  a  charge  against  the  devisees,  we 
think  he  was  subrogated  to  the  rights  of  the  judgment  creditor, 
and  he  could  by  the  proper  presentation  of  his  rights  have  sub- 
jected the  land  to  the  payment  of  the  judgment  in  preference  to 
any  claim  upon  it  by  the  devisees." 

In  Peters  v.  Clements,  52  Tex.  140,  the  court  held  that  "the 
purchaser  at  a  sale  under  a  judgment  foreclosing  a  vendor's  lien 
on  the  entire  tract  of  land  originally  sold,  is  entitled  to  be  subro- 
gated to  the  rights  of  the  original  vendor  as  against  the  pur- 
chaser of  a  portion  of  the  land,  who  bought  from  the  vendee  be- 
fore the  proceedings  to  foreclose  were  begun,  and  who  was  not 
made  a  party  to  such  proceedings.  He  may  have  that  portion  of 
the  land  claimed  by  the  second  vendee,  who  was  not  a  party  to 
the  foreclosure  proceedings,  resold  to  pay  its  proportion  of  the 
amount  paid  at  the  foreclosure  sale  for  the  whole  tract." 

These  constitute  principal  cases  in  which  our  supreme  court 
has  adjudicated  the  question.  And  from  them  it  is  concluded 
that  where  the  judgment  is  valid,  but  execution  or  sale  is  invalid, 
and  the  purchaser  is  not  a  party  to  the  judgment,  and  is  guilty 
of  no  fraud  in  the  purchase,  and  the  money  he  paid  has  been  ap- 


'296  Taxation  in  Texas. 

plied  to  the  judgment,  he  will  be  entitled  to  hold  the  property 
until  he  is  reimbursed. 

And  in  case  the  plaintiff  in  the  execution  is  the  purchaser,  he 
will  be  restored  to  his  original  rights  in  the  judgment.  Burns 
V.  Ledbetter,  54  Tex.  383. 

§  504.     Purchaser  in  good  faith. 

The  general  rule  is  believed  to  be  that  a  purchaser  at  execution 
sale,  who  looks  to  the  record  and  finds  there  a  valid  subsisting 
judgment  authorizing  the  execution  under  which  the  officer  pro- 
ceeds, and  who  in  good  faith  buys,  pays  the  purchase  money  and 
receives  a  deed,  takes  a  title  which  is  valid  until  the  sale  is  set 
aside.    Owen  v.  City  of  Navasota,  44  Tex.  522. 

That  the  owner  of  a  lot,  who  bought  it  subject  to  taxes,  was 
an  innocent  purchaser,  could  not  be  set  up  as  a  defense  against  a 
suit  to  enforce  the  tax  lien,  as  every  one  is  charged  with  knowl- 
edge of  taxes  and  of  the  existence  of  the  lien,  and  especially  a 
person  undertaking  to  pay  all  taxes  and  taking  subject  thereto. 
Toeppermein  v.  City  of  San  Antonio,  124  S.  W.  699. 

§  505.     Purchaser  of  property  with  taxes  due. 

Any  one  who  has  purchased  property  encumbered  with  a  lien 
for  taxes  should  be  deemed  as  to- such  taxes  a  delinquent  tax- 
payer. Such  a  purchaser  takes  the  property  charged  with  the 
lien  and  he  can  not  interpose  any  defense  which  his  vendor  might 
not  had  he  continued  to  be  the  owner.  Mellinger  v.  City  of  Hous- 
ton, 68  Tex.  42 ;  Henry  v.  Horstick,  9  Watts  412 ;  Smeich  v.  York 
County,  68  Penn.  St.  439;  Covington  v.  Boyle,  6  Bush  (Ky.) 
204 ;  Rundell  v.  Lakey,  40  N.  Y.  513. 

One  who  has  purchased  property  incumbered  with  a  lien  for 
taxes  should  be  deemed,  as  to  such  taxes,  a  delinquent  taxpayer. 
Such  a  purchaser  takes  the  property  charged  with  the  lien,  and 
he  can  not  interpose  any  defense  which  his  vendor  might  not,  had 
he  continued  to  be  the  owner.  Mellinger  v.  City  of  Houston, 
3  S.  W.  251,  68  Tex.  37. 


CHAPTER  XXV. 

IMPROVEMENTS  IN  GOOD  FAITH. 

Sec.  .  Sec. 

506.  May  claim   improvements   in       507.  Void  tax. 

good   faith   under   tax   title       508.  Evidence  of  not  sufficient. 

not  void  on  its  face.  509.  Under  tax   deed   must  prove 

prerequisites. 

§  506.     May  claim  improvements  in  good  faith  under  tax  title 
not  void  on  its  face. 

A  possessor  in  good  faith  is  one  who  not  only  supposes  himself 
to  be  the  true  owner  of  the  land,  but  who  is  ignorant  that  his 
title  is  contested  by  any  person  claiming  a  better  right.  And  a 
possessor  in  good  faith  within  the  meaning  of  the  statute  will 
be  entitled  to  compensation  for  the  permanent  and  valuable  im- 
provements he  has  made  upon  the  land  while  so  in  possession, 
though  it  should  turn  out  that  his  title  is  defective,  or  that  an- 
other has  the  superior  title.  It  is  therefore  a  question  of  fact  to 
be  determined  by  the  jury  from  all  the  evidence,  whether  the 
possessor  claimed  the  land  as  the  owner,  believing  himself  to  be 
such  when  he  made  the  improvements,  notwithstanding  the  in- 
validity .in  point  of  fact  of  the  title  under  which  he  maintained 
his  claim.  In  case  the  defendants  claimed  under  a  tax  title  which 
is  invalid,  they  were  entitled  to  adduce  evidence  as  to  improve- 
ments under  their  suggestion  of  good  faith,  and  to  have  that  issue 
determined.  It  was  held  in  Robson  v.  O shorn,  13  Tex.  298,  that 
an  invalid  tax  title  carried  no  equity  with  it;  that  it  was  inad- 
missible evidence  to  sustain  a  suggestion  of  possession  and  im- 
provements in  good  faith.  That  decision  is  now  held  to  be  ques- 
tionable authority.  The  parties  having  accepted  a  tax  deed,  not 
void  on  its  face,  may  have  possessed  the  property  and  made  im- 
provements under  the  belief  that  their  title  was  good,  whether 
its  validity  as  a  conveyance  arising  out  of  the  want  of  authority 
on  the  part  of  the  assessor  for  failing  to  comply  with  the  pre- 
requisites of  the  law  necessary  to  pass  the  title,  or  other  defects 
in  the  title  claimed,  were  of  such  a  character  as  would  operate 
to  negotiate  or  destroy  the  claim  to  being  possessors  in  good 


298  Taxation  in  Texas. 

faith,  would  be  the  proper  subject  of  determination ;  but  the  mere 
fact  that  the  evidence  disclosed  the  invalidity  of  the  deed  to  con- 
vey title  would  not  warrant  the  exclusion  of  the  evidence  that  was 
offered,  thereby  refusing  to  hear  the  issue  as  to  improvements. 
House  V.  Stone,  64  Tex.  683;  W afford  v.  McKinna,  23  Tex.  36; 
French  v.  Grenet,  57  Tex.  278 ;  Miller  v.  Brozvnson,  50  Tex.  597. 

In  trespass  to  try  title  against  one  claiming  under  a  tax  deed, 
not  void  on  its  face,  such  claimant  is  entitled  to  prove  the  mak- 
ing of  improvements  on  the  land  under  his  plea  of  good  faith, 
and  to  have  the  issue  of  his  right  to  reimbursement  therefor  de- 
termined in  case  his  title  is  set  aside.  Lamberida  v.  Barnum,  90 
S.  W.  700;  House  v.  Stone,  64  Tex.  677;  French  v.  Grenet,  57 
Tex.  273 ;  Schleicher  v.  Gatlin,  85  Tex.  275,  20  S.  W.  120. 

The  question  of  good  faith  is  one  of  fact,  depending  upon  the 
circumstances  of  the  particular  case  in  which  it  is  asserted. 
Wortham  v..  Boyd,  66  Tex.  401,  1  S.  W.  109.  "The  existence 
of  good  faith  is  a  fact  to  be  established  in  such  cases  by  evidence 
of  other  facts  tending  to  show  that  the  person  asserting  it  at  the 
time  he  made  improvements  on  the  land  believed  himself  to  be 
its  owner,  and  had  grounds  for  such  belief,  such  as  would  ordi- 
narily be  satisfactory  to  one  unlearned  in  the  law,  but  of  ordi- 
nary intelligence,  after  having  made  such  inquiry  as  the  law  pre- 
sumes every  person  desiring  to  buy  land  will  make,  and  as  an 
ordinarily  prudent  man  for  his  protection  ought  to  make."  Hol- 
stein  V.  Adams,  72  Tex.  485,  10  S.  W.  560. 

§  507.     Void  tax. 

A  tax  deed  void  on  its  face  for  ambiguity  of  description  will 
not  support  a  claim  for  improvements  in  good  faith.  Crumbley 
V.  Busse,  32  S.  W.  438,  11  Tex.  Civ.  App.  319. 

It  can  not  be  held  as  a  matter  of  law  that  one  did  not  make 
his  improvement  in  good  faith  because  he  held  under  a  void  tax 
title.  Louder  v.  Schulter,  78  Tex.  103,  14  S.  W.  205 ;  Schleicher 
V.  Gatlin,  85  Tex.  270,  20  S.  W.  120;  Netsorg  v.  Geren,  62  S.  W. 
789,  26  Tex.  Civ.  App.  119. 

A  tax  deed  which  is  void  on  its  face  is  admissible  as  evidence 
for  defendant  in  trespass  to  try  title  in  support  of  a  plea  of  im- 
provements in  good  faith.  Schleicher  v.  Gatlin,  20  S.  W.  120,  85 
Tex.  270. 


Improvements  in  Good  Faith.  299 

§  508.     Evidence  of  not  sufficient. 

Where  land  belonging  to  another  is  sold  for  taxes  against  J., 
who  was  a  trespasser  thereon,  the  judgment,  deed,  and  writ  of 
possession  are  inadmissible  in  trespass  to  try  title  brought  by  the 
real  owner  against  the  tax  purchaser  in  possession,  as  such  evi- 
dence, though  considered  in  connection  with  evidence  that  J. 
held  possession  of  the  land  and  returned  the  same  for  taxation, 
and  though  the  tax  purchaser  considered  J.  as  the  owner  thereof, 
is  insufficient  to  show  that  the  purchaser  is  not  a  mere  trespasser, 
and  will  not  support  a  plea  of  improvements  in  good  faith. 
Muniine  v.  McCloskey,  66  S.  W.  853,  28  Tex.  Civ.  App.  83. 

§  509.     Under  tax  deed  must  prove  prerequisites. 

A  tax  deed  is  admissible  for  defendant  in  trespass  to  try  title 
in  support  of  a  plea  of  the  five  years'  statute  of  limitations,  as 
well  as  of  improvements  made  in  good  faith,  without  proof  of  the 
levy  of  the  tax  and  the  usual  prerequisites  to  a  sale  for  taxes. 
Schleicher  v.  Gatlin,  20  S.  W.  120,  85  Tex.  270. 


CHAPTER  XXVI. 

VENDOR  AND  VENDEE. 

Sec.  Sec. 

510.  Purchaser     under     warranty 

deed.  513.  Implied      warranty      against 

511.  Sale  after  January  1st.  tax  lien. 

512.  Assumption      of      taxes      by       514.  Cattle  sale  of. 

vendee. 

§  510.     Purchaser  under  warranty  deed. 

Where  a  grantee  under  a  warranty  deed  was  compelled  to  pay 
taxes  thereon,  which  were  a  lien  at  the  time  of  purchase,  he 
should  have  been  credited  with  the  amount  so  paid  in  a  judgment 
on  a  note  given  in  part  payment  of  the  purchase  price.  Swope 
V.  Mo.  Trust  Co.,  62  S.  W.  947,  26  Tex.  Civ.  App.  133. 

§511.     Sale  after  January  1st. 

Since  property  owned  by  one  on  January  1st  must  be  listed  for 
taxes  before  June  1st  of  that  year,  though  the  taxes  do  not  be- 
come due  until  October  1st  following,  he  is  personally  liable  for 
the  taxes  of  that  year,  though  he  sells  the  property  before  the 
amount  of  such  taxes  has  been  ascertained,  and  before  the  pay- 
ment thereof  becomes  due.  Carswell  &  Co.  v.  Habhersettle,  87 
S.  W.  911,  39  Tex.  Civ.  App.  493. 

To  secure  the  payment  of  taxes  and  penalties  the  constitution 
provides  that  the  annual  assessment  made  upon  landed  property 
shall  be  a  special  lien  thereon,  and  all  property,  both  real  and 
personal,  belonging  to  any  delinquent  taxpayer  shall  be  liable  to 
seizure  and  sale  for  the  payment  of  all  the  taxes  and  penalties  due 
by  such  delinquent.  Art.  8,  Sec.  15.  This  lien  attaches  and  the 
taxes  become  an  encumbrance  on  the  land  from  the  date  liability 
is  fixed  on  the  owner,  which  is  the  first  day  of  January  of  the 
year,  although  the  amount  of  said  tax  is  not  fixed  or  determined 
until  some  time  subsequent  thereto.  Carsmell  &  Co.  v.  Hahhcr- 
zettle,  87  S.  W.  912,  39  Tex.  Civ.  App.  493 ;  Cruger  v.  Gennnth. 
3  Wilson  Civ.  Cases,  Sec.  24;  Almy  v.  Hunt,  48  111.  45;  RundcU 
V.  Lakey,  40  N.  Y.  514;  Carswell  v.  Habhersettle,  86  S,  W.  738, 
12  Tex.  786. 


Vendor  and  Vendee.  301 

§  512.     Assumption  of  taxes  by  vendee. 

The  assumption  by  the  purchaser  of  a  lot  of  the  payment  of 
a  judgment  for  taxes  in  favor  of  a  city  gave  it  the  right  to  sue 
him  personally  for  the  debt  evidenced  by  it. 

The  lien  on  a  lot  securing  subsequently  accruing  taxes  which  a 
purchaser  assumed  could  not  be  enforced,  except  by  a  suit  against 
him. 

A  city,  desiring  to  avail  itself  of  the  assumption  by  a  purchaser 
of  a  lot  of  a  judgment  in  its  favor  for  taxes,  and  also  of  subse- 
quent accruing  taxes  thereon,  and  having  the  right  to  personal 
recovery  against  him  for  both  debts,  could  litigate  his  liability 
in  one  suit,  and  could  properly  include  therein  a  prayer  for  fore- 
closure of  the  lien  on  the  lot  common  to  all  the  taxes. 

A  clear  and  unambiguous  written  agreement  to  take  property 
"subject  to  all  taxes  due  thereon,"  is  not  subject  to  construction 
or  explanatory  testimony  to  show  an  agreement  to  assume  the 
same. 

Evidence  held  not  to  show  that  the  purchaser  of  a  lot  assumed 
personally  to  pay  taxes  due  thereon,  but  to  show  that  he  took  it 
subject  thereto.  Toepperwein  v.  City  of  San  Antonio,  124  S. 
W.  699. 

§  513.     Implied  warranty  against  tax  lien. 

Under  Sayles  Ann.  Civ.  St.  1897,  Art.  633,  providing  that, 
from  the  use  of  the  word  "granted"  or  "conveyed"  in  any  con- 
veyance by  which  an  estate  of  inheritance  or  fee  simple  is  to  be 
passed,  a  covenant  against  incumbrances  shall  be  implied,  a  con- 
veyance of  land  in  fee,  containing  such  words,  impliedly  war- 
ranted that  the  property  was  free  from;  tax  liens.  Bullitt  v. 
Coryell,  85  S.  W.  482,  38  Tex.  Civ.  App.  42. 

§  514.     Cattle  sale  of. 

The  seller  is  liable  for  taxes  on  such  cattle  regularly  assessed 
to  him  before  delivery.    Edwards  v.  Irvin,  45  S.  W.  1026. 


CAPTER  XXVII. 

TAX  LIEN. 

Sec.  Sec. 

515.  Delinquent  taxes  lien  on  land.      518.  Purchaser    under    tax    judg- 

516.  Tax  lien  superior  to  assign-  ment. 

ment,     attachment,     Inheri-      519.  Lien  only  on  separate  tracts, 
tance  or  devise — Except.  520.  Foreclosure  of  tax  lien. 

517.  Foreclosure  and  sale  of  part      521.  Priority  of  tax  lien. 

releases  all.  522.  When  lien  attaches. 

523.  Tax  lien — Public  use. 

§  515.     Delinquent  taxes  lien  on  land. 

All  lands  or  lots  which  have  been  returned  delinquent  or  re- 
ported sold  to  the  state  or  to  any  city  or  town  for  taxes  due 
thereon  since  the  first  day  of  January,  A.  D.  1885,  or  which  may 
hereafter  be  returned  delinquent  or  reported  sold  to  the  state  or 
to  any  city  or  town  shall  be  subject  to  the  collection  by  suit  filed 
to  foreclose  the  tax  lien  and  said  taxes  shall  remain  a  lien  upon 
said  land,  although  the  owner  be  unknown  or  though  it  be  listed 
in  the  name  of  a  person  not  the  actual  owner,  and  though  the 
ownership  be  changed  the  land  may  be  sold  under  the  judgment 
of  the  court  for  all  taxes,  interest,  penalty  and  costs  shown  to  be 
due  by  such  assessment  for  any  preceding  year.  (Acts  1897,  p. 
132,  Sec.  1.) 

§  516.  Tax  lien  superior  to  assignment,  attachment,  inherit- 
ance or  devise — Except. 
In  all  cases  where  a  taxpayer  makes  an  assignment  of  his 
property  for  the  payment  of  his  debts  to  where  his  property  is 
levied  upon  by  creditors,  by  writs  of  attachment  or  otherwise, 
or  where  the  estate  of  a  decedent  is  or  becomes  insolvent  and 
the  taxes  assessed  against  such  person  or  party  against  his  es- 
tate remains  unpaid  in  part  or  in  whole  property ;  provided,,  that 
when  taxes  are  due  by  an  estate  of  a  deceased  person  the  lien 
herein  provided  for  shall  be  subject  to  the  allowances  to  widows 
and  minors,  funeral  expenses  and  expenses  of  last  sickness ;  and 
such  unpaid  taxes  shall  be  paid  by  the  assignee  when  said  prop- 
erty was  assigned  by  the  sheriff  out  of  the  proceeds  of  sale  in 


Tax  Lien.  303 

case  such  property  has  been  seized  under  attachment  of  other 
writ  and  by  the  administrator  or  other  legal  representative  of 
decedents  and  if  said  taxes  shall  not  be  paid  all  said  property  may 
be  levied  on  by  the  tax  collector  and  sold  for  such  taxes  in  whom- 
soever's  hands  it  may  be  found.  (Report  Joint  Committee,  1895 
No.  Ill,  Sen.  Jour.,  p.  486.) 

§  517.     Foreclosure  and  sale  for  part  releases  all. 

Where  a  city  having  a  tax  judgment  on  certain  lots  for  cer- 
tain years  recovered  another  judgment  for  taxes  for  both  prior 
and  subsequent  years,  and  caused  the  entire  property  to  be  sold 
without  reserve  under  the  last  judgment,  it  was  bound  by  the 
action  of  its  officers  in  making  such  sale,  and  the  purchaser  took 
the  property  free  from  any  lien  under  the  first  judgment,  wheth- 
er he  knew  of  it  or  not.  The  city  by  such  sale  merely  exhausted 
the  security  in  collecting  the  second  judgment,  and  the  city  char- 
ter prohibiting  the  release  or  compromise  of  a  tax  was  not  vio- 
lated. City  of  Houston  v.  Baxrtlett,  68  S.  W.  730,  29  Tex.  Civ. 
App.  27 ;  Vieno  v.  Gibson,  85  Tex.  432,  21  S.  W.  1028. 

§  518.     Purchaser  under  tax  judgment. 

The  provision  of  a  city  charter  that  any  person  who  shall  pur- 
chase property  incumbered  with  taxes  shall  be  deemed  as  to  such 
taxes  a  delinquent  taxpayer,  and  takes  the  property  charged  with 
a  lien,  applies  only  to  purchasers  from  a  delinquent  taxpayer,  and 
does  not  apply  to  a  purchaser  of  property  sold  under  a  tax  judg- 
ment. City  of  Houston  v.  Bartlett,  68  S.  W.  730,  29  Tex.  Civ. 
App.  27. 

§  519.     Lien  only  on  separate  tracts. 

The  lien  given  by  the  Constitution  of  1869  for  taxes  assessed 
against  land,  constitutes  a  charge  only  upon  each  separate  tract 
for  the  taxes  assessed  against  it,  and  that  a  judgment  declaring 
a  lien  upon  several  tracts  for  the  aggregate  taxes  due  on  all  would 
be  erroneous  whether  the  tax  was  due  a  municipal  government  or 
the  state.  Jodon  v.  The  City  of  Brenham,  57  Tex.  657 ;  Edmond- 
son  V.  City  of  Galveston,  53  Tex.  161 ;  Clegg  v.  State,  42  Tex.  506. 

§  520.     Foreclosure  of  tax  lien. 

A  Hen  can  not  be  foreclosed  upon  an  entire  piece  of  property 
when  the  taxes  have  been  assessed  upon  a  portion  only.  Cave  v. 
City  of  Houston,  65  Tex.  619. 


304  Taxation  in  Texas. 

§  521.     Priority  of  tax  lien. 

Landlord's  lien  on  a  general  stock  of  merchandise  held  prior 
to  a  city's  lien  for  taxes  for  various  years,  in  the  absence  of  identi- 
fication of  the  particular  goods  seized  which  were  subject  to  the 
tax  lien,  and  in  a  contest  between  a  city  and  a  landlord  as  to  the 
priority  of  a  landlord's  lien  over  the  city's  lien  for  taxes,  the  bur- 
den of  proof  was  on  the  city  to  identify  the  particular  portion  of 
the  stock  subject  to  the  lien.  City  of  Fort  Worth  v.  Boulware, 
62  S.  W.  928,  26  Tex.  Civ.  App.  76.     . 

§  522.     When  lien  attaches. 

In  state  and  county  taxes  the  tax  lien  attaches  on  January  1st. 
Cruger  v.  Linnuth,  3  W.  Civ.  24. 

§  523.     Tax  lien— Public  use. 

A  tax  lien  can  not  be  defeated  on  the  ground  that  the  land  on 
which  it  is  asserted  has  been  dedicated  to  the  public  use,  unless 
it  appears  that  the  public  owns  or  claims  the  land  by  virtue  of 
such  dedication.  Traylor  v.  State,  46  S.  W.  81,  19  Tex.  Civ. 
App.  86. 


CHAPTER  XXVIII. 


PAYMENT. 


Sec. 

524.  Taxes  payable  in  money   or 

scrip. 

525.  Payment — How  proved. 

526.  Where  made. 

527.  Penalty    of     failure     to    pay 

taxes. 

528.  Taxes,  etc.,  of  cities  less  than 

10,000     inhabitants    collect- 
ible in  current  money  only. 

529.  Action    will    not    lie    against 

tax  collector — When. 

530.  What  constitutes  involuntary 

payment. 

531.  Not  compulsory — Payment. 

532.  Payment — How  made. 

533.  Payment  in  coupons  must  be 

before  suit. 

534.  Receipts    evidence    to    show 

payment. 

535.  Receipt  no  positive  evidence 

of  payment. 


Sec. 

536.  Right    to    rebut    receipt    and 

show   that   taxes   were   not 
paid. 

537.  Scrip  not  receivable. 

538.  Certificate    of    tax    collector 

not    sufficient    evidence    of 
payment  of  taxes. 

539.  Payment  in  warrant. 

540.  May  compromise  by  deed. 

541.  In  money,  not  in  services. 

542.  Reduction  of  tax   after   pay- 

ment, 

543.  Tender  of  part. 

544.  Must  show  payment  of  taxes 

before  validity  of  taxes  can 
be  questioned. 

545.  Presumption   of  payment  by 

one  rendering. 

546.  Payment  before  taxes  are  due 

not  binding  on  State. 

547.  Credit    to    tax    collector    not 

payment. 


§  524.     Taxes  payable  in  money  or  scrip. 

The  taxes  due  the  state  or  county  are  made  payable  in  the  cur- 
rency or  coin  of  the  United  States ;  provided,  that  persons  holding 
scrip  issued  to  themselves  for  services  rendered  the  county  may 
pay  their  county  ad  valorem  taxes  in  such  scrip.  (Acts  1879,  p. 
148;  1897,  S.  S.,  p.  38,  Sec.  1.)     R.  S.,  Art.  5051. 

§  525.     Payment — How  proved. 

Payment  of  taxes  may  be  proved  by  testimony,  either  direct  or 
circumstantial,  just  as  any  other  fact  can  be  proved.  Jordan  v. 
Broim,  94  S.  W.  399;  Watson  v.  Hopkins,  27  Tex.  6Z7 ;  Ochoa 
V.  Miller,  59  Tex.  460;  Allen  v.  Woodson,  60  Tex.  651 ;  Button 
V.  Thompson,  85  Tex.  115,  19  S.  W.  1026;  Smith  v.  Estill,  87 
Tex.  270,  28  S.  W.  801. 


20 


306  Taxation  in  Texas. 

§  526.     Where  made. 

All  property,  whether  owned  by  persons  or  corporations,  shall 
be  assessed  for  taxation,  and  the  taxes  paid  in  the  county  where 
situated,  but  the  legislature  may,  by  a  two-thirds  vote,  authorize 
the  payment  of  taxes  on  non-residents  of  counties  to  be  made  at 
the  office  of  public  accounts.    St.  Const.,  Sec.  11,  Art.  8. 

§  527.     Penalty  of  failure  to  pay  taxes. 

If  any  person  shall  fail  or  refuse  to  pay  the  taxes  imposed 
upon  him  or  his  property  by  law  until  the  thirty-first  day  of  Jan- 
uary next  succeeding  the  return  of  the  assessment  rolls  of  the 
county  to  the  comptroller,  a  penalty  of  ten  per  cent  on  the  entire 
amount  of  such  taxes  shall  accrue,  which  penalty,  when  collected, 
shall  be  paid  proportionately  to  the  state  and  county.  Acts  1897, 
p.  136,  Sec.  10. 

§  528.  Taxes,  etc.,  of  cities  less  than  10,000  inhabitants  col- 
lectible in  current  money  only. 
Taxes  levied  to  defray  the  current  expenses  of  the  city  gov- 
ernment, and  all  license  and  occupation  taxes  levied,  and  all  fines, 
forfeitures,  penalties  and  other  dues  accruing  to  cities,  shall  be 
collectible  only  in  current  money.    Sayles  R.  S.,  Art.  522. 

§  529.     Action  will  not  lie  against  tax  collector  when. 

An  action  can  not  be  maintained  against  a  tax  collector  to  re- 
cover taxes  claimed  to  have  been  illegally  exacted  and  paid  un- 
der protest,  on  the  ground  that  the  assessment  was  at  too  high  a 
valuation,  where  the  tax  roll  was  in  due  form,  and  the  collector 
was  acting  within  his  authority.  Continental  Land  &  Caitle  Co. 
V.  'Board,  16  S.  W.  312,  80  Tex.  489. 

§  530.     What  constitutes  involuntary  payment. 

Payments  made  on  an  illegal  demand,  in  order  to  be  involun- 
tary, must  be  made  under  an  immediate  and  urgent  necessity, 
and  the  fact  that  they  were  made  under  protest,  and  from  fear 
that  legal  proceedings  would  be  instituted  and  business  closed, 
does  not  render  them'  involuntary,  and  illegal  taxes  so  paid  can 
not  be  recovered.    City  of  Laredo  v.  Loury,  20  S.  W.  89. 

That  a  city  tax  collector,  in  his  receipt,  states  the  payment  of 
an  assessment  on  lands  to  have  been  made  under  protest,  does 
not  aflfect  the  character  of  the  payment  as  voluntary  or  involun- 
tary, where  the  lands  have  already  been  sold  under  the  law  re- 


Payment.  307 

garding  delinquent  taxpayers,  and  bought  by  the  city,  and  the 
payment  is  afterwards  made  in  pursuance  of  an  agreement  be- 
tween the  former  owner  and  the  city. 

The  proposition  of  a  property  owner  to  pay  such  assessment 
if  the  city  would  remit  the  interest  and  penalty  allowed  by  law, 
though  the  right  be  reserved  to  resort  to  the  courts  should  he 
thereafter  find  occasion,  evidences  a  voluntary  payment. 

A  protest  to  be  effective  should  refer  specifically  to  property 
claimed  to  be  illegally  taxed,  and  not  generally  to  property  ad- 
mitted to  be  legally  taxed  as  well  as  the  former. 

The  payment  of  an  illegal  demand  by  a  party  with  full  knowl- 
edge of  the  facts,  except  in  case  of  necessity,  as  to  protect  one's 
person  or  property,  is  deemed  voluntary.  Galveston  City  Co.  v. 
Galveston,  56  Tex.  486. 

Negotiations  having  arisen  between  plaintiff  and  defendant 
city  looking  to  the  acquisition  of  some  of  plaintiff's  land  for  a 
street,  she  fixed  a  price  on  the  land,  which  the  council  agreed  to 
allow,  provided  it  was  applied  on  certain  back  taxes  which  she 
owed  the  city.  She  agreed  with  the  city  attorney  to  allow  the 
money  to  go  to  satisfy  her  taxes  in  full,  which  agreement  was  re- 
ported to  the  council  and  accepted.  Afterwards  she  brought  a 
deed  for  the  land  to  the  mayor,  and  endorsed  the  warrant  which 
she  received  therefor  back  to  the  city,  protesting  at  the  same  time 
against  the  amount  of  the  taxes.  Held,  that  the  payment  by  her 
of  the  taxes  was  voluntary.  O strum  v.  City  of  San  Antonio,  71 
S.  W.  304,  30  Tex.  Civ.  App.  462. 

§  531.     Not  compulsory  payment. 

Since  a  deed  from-  a  tax  collector  of  the  city  of  Galveston  to  a 
purchaser  at  a  tax  sale  of  land  is  no  evidence  of  title  without 
proof  of  all  the  jurisdictional  prerequisites,  the  payment  of  the 
tax  to  avoid  such  sale,  though  made  under  protest,  and  with  no- 
tice that  the  payer  will  sue  to  recover  it,  is  not  a  compulsory 
payment.  Davie's  Ex'rs  v.  City  of  Galveston,  41  S.  W.  145,  16 
Tex.  Civ.  App.  13. 

§  532.     Payment — How  made. 

Art.  11,  Sec.  4,  of  the  State  Constitution,  which  forbids  that 
taxes  should  be  paid  in  anything  but  current  money,  applies  only 
to  cities  of  10,000  population  or  less.  There  is  no  such  provision 
in    Section    5    of    Art.    11,    which    regulates    the    subject    of 


308  Taxation  in  Texas. 

taxation  in  cities  of  more  than  10,000  population  and  the  prohib- 
itory clause  does  not  apply  to  cities  of  more  than  10,000  popula- 
tion, therefore  it  is  not  unconstitutional  to  authorize  cities  of 
more  than  ten  thousand  inhabitants  to  receive  in  payment  of 
taxes  certificates  of  indebtedness.  City  of  Houston  v.  Stewart, 
87  S.  W.  665,  99  Tex.  67. 

Section  40  of  the  charter  of  the  city  of  Houston,  as  amended 
m  1899,  contains  the  following  provision :  "Nothing  but  current 
money  of  the  United  States  shall  be  collected  or  received  in  pay- 
ment of  taxes  or  licenses  due  as  hereafter  assessed,  except  that 
coupons  and  scrip  made  receivable  for  taxes  on  the  face  thereof 
shall  be  receivable  for  all  taxes  except  the  bond  tax."  Sp.  Laws, 
26th  Leg.,  p.  191,  Chap.  17.  Under  this  provision  of  the  city 
charter  it  is  clear  that  the  city  council  were  not  authorized  to 
pass  an  amendment  making  paving  certificates  receivable  for 
taxes  levied  to  secure  funds  to  discharge  the  bonded  indebtedness 
of  the  city,  and  if  the  ordinance  authorizing  the  receipt  of  said 
certificates  in  payment  of  city  taxes  can  be  construed  as  includ- 
ing the  special  taxes  above  mentioned,  it  is  to  that  extent  void. 
If  the  exception  in  this  provision  of  the  charter  had  been  omitted 
we  would  not,  in  view  of  the  requirement  of  our  constitution 
that  when  a  city  creates  a  debt  and  issues  bonds  therefor,  it  shall 
make  provision  for  the  levy  and  assessment  of  a  sufficient  tax  to 
provide  a  sinking  fund  for  the  payment  of  the  bonds  at  maturity 
and  a  fund  for  the  payment  of  the  interest  as  it  accrues  thereon, 
and  in  view  of  our  statutes  for  the  protection  and  safeguarding 
of  this  fund  hold  that  a  statute  which  in  general  terms  authorized 
a  city  to  make  its  evidences  of  indebtedness  receivable  for  taxes 
was  intended  to  apply  to  special  taxes  of  the  kind  mentioned. 
The  bonds  are  payable  in  current  money  and  the  mandate  of  the 
constitution  requiring  the  city  to  provide  a  fund  for  their  re- 
demption would  not  be  complied  with  if  the  city  received  in  pay- 
ment of  the  taxes  levied  to  create  such  fund,  anything  other  than 
current  money,  and  any  statute  authorizing  the  payment  of  such 
taxes  otherwise  than  in  current  money  would  in  our  opinion  be 
contrary  to  the  constitution  of  the  state.  To  permit  taxes  of  this 
kind  to  be  paid  in  warrants  or  other  evidences  of  indebtedness 
due  by  the  city  would  greatly  impair  and  might  partially  or  whol- 
ly destroy,  the  fund  made  sacred  by  our  constitution  and  laws  to 
the  payment  of  the  bonds  issued  by  the  city,  and  thus  prevent 


Payment.  309 

the  discharge  by  the  city  of  its  obligations  to  its  bondholders. 
Any  legislation  which  might  produce  such  results  would  seem  to 
be  obnoxious  to  th?  provision  of  the  constitution  of  the  United 
States  which  forbids  a  state  to  pass  any  law  impairing  the  obliga- 
tion of  contracts  as  well  as  to  the  provisions  of  our  state  con- 
stitution before  mentioned.  The  city,  as  trustee  for  the  bond- 
holders in  the  collection  of  the  taxes  levied  to  discharge  the  in- 
debtedness evidenced  by  the  bonds,  could  interpose  any  objec- 
tion to  the  validity  of  the  ordinance  making  the  paving  certificates 
receivable  for  taxes  which  the  bondholders  might  interpose  had 
they  been  parties  to  the  suit.  City  of  Houston  v.  Stezvart,  90  S. 
W.  52,  40  Tex.  Civ.  App.  499;  City  of  Tyler  v.  Tyler  B.  &  L.  As- 
sociation, 82  S.  W.  1066,  11  Tex.  48. 

§  533.     Payment  in  coupons  must  be  before  suit.  , 

Construing  Sec.  6  of  Art.  11  of  the  State  Constitution,  which 
provides  that  taxes  levied  by  a  municipal  corporation  to  pay  an 
indebtedness  theretofore  existing  "may  be  paid  in  coupons,  bonds 
or  other  indebtedness  for  the  payment  of  which  such  tax  was 
levied,"  held,  that  unless  the  taxpayer  avails  himself  of  the  con- 
stitutional privilege  to  pay  such  tax  in  such  coupons  before  the 
institution  of  a  suit  against  him  to  enforce  collection ;  a  tender 
after  suit  is  unavailing,  and  the  corporation  is  entitled  to  a 
moneyed  judgment.    Bummel  v.  Houston,  68  Tex.  10. 

Section  5  of  the  act  to  organize  commissioners'  courts  (Laws 
of  15th  Leg.,  p.  52),  does  not  embrace  or  refer  to  taxes  to  pay 
the  interest  and  provide  a  sinking  fund  for  bonded  indebtedness, 
incurred  in  aiding  internal  improvements,  which  were  in  truth  • 
levied  at  the  time  the  bonds  were  issued.  That  act  refers  to  and 
limits  to  twenty-five  cents  on  the  hundred  dollars  those  taxes  for 
the  payment  of  debts  incurred  prior  to  April  18,  1876,  the  levying 
of  which  is  discretionary  with  the  commissioners'  court.  Dean  v. 
Lufkin,  54  Tex.  265. 

§  534.     Receipts  evidence  to  show  payment. 

It  is  also  objected  that  the  receipts  of  the  tax  collector  were 
not  admissible  evidence  to  prove  payment  of  the  taxes.  This  ob- 
jection we  do  not  think  tenable.  The  receipts  come  clearly  with- 
in the  rule,  which  admits  entries  made  by  third  persons  in  the 
discharge  of  official  duty  to  be  received  as  original  evidence. 
(1  Green  Ev.,  Sees.  115,  116,  120,  147.)     It  can  not,  we  think. 


310  Taxation  in  Texas. 

be  doubted  that  the  court  may  take  notice,  without  proof,  of 
the  fact  that  it  is  the  duty,  and  the  universal  custom  of  tax  col- 
lectors to  give  receipts  upon  the  payment  of  taxes.  The  giving 
of  the  receipts  is  an  official  act  and  duty  of  the  collector,  acting 
on  behalf  of  the  government.  The  receipt  is  a  documentary  fact, 
evidencing  the  payment  of  the  taxes ;  and  as  such  is  admissible. 
Thus,  in  the  case  of  Sherman  v.  Crosby  (11  Johns.  R.  70),  a  re- 
ceipt for  the  payment  of  a  judgment,  recovered  by  third  person 
against  the  defendant,  was  held  admissible  in  an  action  for  the 
money  so  paid,  by  the  party  paying  it,  he  having  had  authority 
to  adjust  the  demand,  and  the  receipt  being  a  documentary  fact 
in  the  adjustment,  though  the  attorney  who  signed  the  receipt 
was  not  produced,  nor  proved  to  be  dead.  So  in  Hall  v.  Hall 
(1  Mass.  101),  a  case  in  point,  where  an  administrator,  to  sup- 
port his  charges  in  an  administration  account  for  payment  of 
taxes,  offered  witnesses  to  prove  the  fact  of  such  payment,  it 
was  held  that  the  receipts  of  the  collector  were  better  evidence 
and  should  be  produced. 

As  respects  the  authority  of  the  person  who  gave  the  receipts 
the  fact  that  he  acted  in  the  capacity  of  tax  collector  is  sufficient 
prima  facie  evidence  of  his  authority.    Deen  v.  Wills,  21  Tex.  647. 

§  535.     Receipt  no  positive  evidence  of  payment. 

A  receipt  in  itself  is  only  presumptive  evidence  of  payment. 
It  is  not  positive  evidence  of  payment.  Turner  v.  National  Cot- 
ton Oil  Co.,  109  S.  W.  1115;  Graves  v.  Bullen,  115  S.  W.  1177. 

§  536.     Right  to  rebut  receipt  and  show  that  taxes  were  not 
paid. 

A  property  owner  paid  $24  taxes  to  the  tax  collector  by  giving 
him  $12  in  cash  and  crediting  him  with  the  $12  balance  on  his 
private  debt,  and  received  a  tax  receipt.  The  collector  reported 
$24  as  paid,  and  attached  to  the  report  was  a  receipt  of  the  city 
treasurer  acknowledging  receipt  of  the  money.  In  a  suit  for  the 
$12  balance,  the  city  offered  to  prove  that  the  collector,  who  was 
a  defaulter,  had  reported  $300  taxes  as  collected,  which  had  in 
fact  been  paid  by  credits  on  his  personal  debts ;  that  he  was  un- 
der indictment  and  totally  insolvent;  and  that  he  had  collected 
$521  in  cash,  and  had  not  reported  it.  Held,  that  the  evidence 
was  admissible  to  rebut  the  documentary  evidence  of  payment, 


Payment.  311 

as  tending  to  show  that  the  collector  had  not  himself  paid  the 
$12  balance  to  the  city.  City  of  Georgetown  v.  Jones,  73  S.  W. 
22,  31  Tex.  Civ.  App.  623. 

§  537.     Scrip  not  receivable. 

We  conclude  that  when  the  legislature  directed  the  assessors 
and  collectors  of  the  state  of  Texas  to  receive  in  payment  of 
taxes  "all  coins  made  current  by  the  laws  of  the  United  States 
and  the  exchequer  bills  of  the  republic  of  Texas,"  they  meant 
these  and  nothing  else,  as  certainly  as  if  they  had  subjoined  ex- 
press negative  words.  Statutes  which  prescribe  (425)  and  limit 
the  exercise  of  official  duty  ought  to  receive  a  strict  interpreta- 
tion in  respect  to  the  powers  conferred  and  the  manner  of  their 
exercise,  and  those  powers  are  not  to  be  enlarged  by  construc- 
tion. The  officer  must  look  to  the  act  by  which  his  office  is  cre- 
ated and  its  duties  are  defined  to  ascertain  the  extent  of  his 
powers  and  the  line  of  his  duties;  and  he  is  not  at  liberty  to 
transcend  the  former  or  vary  the  prescribed  mode  of  perform- 
ance of  the  latter.  The  act  sought  to  be  enforced  in  this  instance 
was  in  effect  forbidden ;  and  that  a  mandamus  will  not  lie  to  com- 
pel an  officer  of  the  government  to  perform  an  act  forbidden  by 
law  has  been  heretofore  decided  by  this  court,  (Hosner  v. 
DeYoung,  1  Tex.  764;  League  v.  DeYoung,  2  Tex.  497.)  The 
certificates  in  question  constitute  the  evidence  of  demands  against 
the  government,  which  doubtless  are  meritorious  and  just,  and 
which  as  such  address  themselves  to  the  sense  of  justice  of  the 
legislature,  but  which  the  courts,  in  the  absence  of  a  law  author- 
izing their  payment,  have  not  the  power  to  enforce  against  the 
government.  (Borden  v.  Houston,  2  Tex.  594,  611,  613).  Bryan 
V.  Simdherg,  5  Tex.  424. 

§  538.     Certificate  of  tax  collector  not  sufficient  evidence  of 
payment  of  taxes. 

Tax  collector  certified  as  follows :  "This  is  to  certify  that  no 
state  and  county  taxes  are  due  on  property  owned  by  Mr.  T.  G. 
Williams  up  to  date,  as  per  records  in  this  office."  Held  that  cer- 
tificate was  insufficient  to  show  payment  of  taxes.  Acklin  v. 
Paschal,  48  Tex.  147. 

§  539.     Payment  in  v^^arrant. 

Payment  for  taxes  with  a  warrant  calling  for  current  money  is 
equivalent  to  a  payment  with  the  money  itself,  and  is  therefore 


312  Taxation  in  Texas. 

good.     Ostrum  v.  City  of  San  Antonio,  71  S.  W.  304,  30  Tex, 
Civ.  App.  462. 

§  540.     May  compromise  by  deed. 

A  city  may  compromise  and  settle  taxes  due  to  it  for  general 
purposes  by  accepting  therefor  a  deed  of  land  for  a  road.  Os- 
trum V.  City  of  San  Antonio,  71  S.  W.  304,  30  Tex.  Civ.  App. 
462. 

§  541.     In  money,  not  in  services. 

Under  Const.,  Art.  11,  Sees.  4,  6,  and  Rev.  St.,  Art.  522,  re- 
quiring that  taxes  levied  by  a  city  to  pay  current  expenses  or  in- 
terest on  bonded  indebtedness  shall  be  paid  in  money,  a  municipal 
contract,  providing  that  services  to  be  rendered  for  the  city  shall 
be  paid  by  crediting  the  amount  due  on  the  contractor's  city  taxes 
and  to  be  afterwards  levied,  is  invalid  and  such  contractor  can 
not  resist  payment  of  such  taxes  by  reason  thereof,  though  he  may 
recover  for  the  work  done.     Wagner  v.  Porter,  56  S.  W.  560. 

§  542.     Reduction  of  tax  after  payment. 

2  Sayles  Civ.  St.,  Art.  5049,  Subd.  1,  requires  occupation  taxes 
to  be  paid  in  advance.  An  occupation  tax  was  levied  on  de- 
fendant a  few  days  prior  to  the  passage  of  Gen.  Laws  (Called 
Sess.),  25th  Leg.,  p.  50,  which  amended  the  act  under  which  such 
tax  was  levied  by  prohibiting  so  large  a  levy  as  that  made  on  de- 
fendant. Held,  that  the  defendant  was  not  entitled  to  a  reduc- 
tion of  the  tax  already  levied.    Brooks  v.  State,  58  S.  W.  1032. 

§  543.    Tender  of  part. 

A  tax  collector  was  not  bound  to  accept  a  part  of  taxes  due 
upon  the  owner's  claim  that  the  amount  tendered  was  the  whole 
amount  due.  Lufkin  Laaid  &  Lumber  Co.  v.  Noble,  127  S.  W. 
1093. 

§  544.     Must  show  payment  of  taxes  before  validity  of  taxes 
can  be  questioned. 

In  an  action  by  a  city  to  recover  property,  based  on  a  tax 
deed,  where  the  defendant,  who  is  required  to  show  that  all  taxes 
due  on  the  property  have  been  paid  before  he  can  be  permitted 
to  question  the  validity  of  the  deed  (Sayles  Rev.  Civ.  St.,  Art. 
447),  relies  on  a  tender,  he  must  plead  and  prove  an  absolute  ten- 
der of  a  sufficient  sum  to  pay  all  taxes  due. 


Payment.  313 

The  provisions  of  Sayles  Rev.  Civ.  St.,  Art.  447,  requiring 
proof  of  payment  of  all  taxes  legally  due  on  property  before  a 
former  owner  can  question  the  validity  of  a  tax  deed  thereon, 
apply  equally  whether  such  owner  is  a  plaintiff  or  defendant. 
Eustis  V.  City  of  Henrietta,  37  S.  W.  632. 

§  545.     Presumption  of  payment  by  one  rendering. 

It  will  be  presumed  that  payments  made  on  tax  assessments 
were  made  by  the  party  rendering  the  land  for  taxation.  Ryle 
V.  Davidson,  116  S.  W.  823. 

§  546.     Payment  before  taxes  are  due  not  binding  on  state. 

Payment  of  taxes  to  the  duly  elected  and  qualified  county  col- 
lector, before  the  tax  rolls  have  been  delivered  to  him  and  when 
he  had  no  warrant  to  collect  the  taxes,  did  not  constitute  a  pay- 
ment of  the  taxes  as  against  the  state.  T.  &  N.  O.  Ry.  Co.  v. 
State,  97  S.  W.  142,  43  Tex.  Civ.  App.  580. 

§  547.     Credit  to  tax  collector  not  payment. 

Inasmuch  as  a  tax  collector  was  only  authorized  to  receive  cash 
for  taxes,  the  fact  that  he  was  given  credit  on  his  account  for 
taxes  by  a  taxpayer  did  not  amount  to  a  payment.  Figares  v. 
State,  99  S.  W.  412. 


CHAPTER  XXIX. 

RIGHT  TO  RECOVER  TAXES  PAID. 

Sec.  Sec. 

548.  Not    authorized    may    be    re-      552.  When  taxes  paid  can  be  re- 

covered, covered. 

549.  Taxes    assessed    without    au-      553.  Right  to  recover  taxes  paid. 

thority  of  law  are  void  and      554.  Voluntary     and     involuntary 
may  be  recovered  back.  payments. 

550.  Illegal    tax — Payment    under      555.  Action  to  recover  taxes. 

protest.  ,    556.  Right  to  recover  tax  paid  at 

551.  Taxes    paid   to    prevent   sale  void   sale. 

are  compulsory  and  can  be 
recovered. 

§  548.     Not  authorized  may  be  recovered. 

Money  collected  by  a  city  not  authorized  by  law  may  be  re- 
covered back,  whether  paid  under  compulsory  process  or  not. 
Marshall  v.  Snediker,  25  Tex.  472 ;  Baker  v.  Panola  Co.,  30  Tex. 
93 ;  Galveston  v.  Sydnor,  39  Tex.  241 ;  City  of  Neivport  v.  Ringo, 
10  S.  W.  2 ;  Torhett  v.  City  of  Louisville,  4  S.  W.  345,  7  Tex.  602 ; 
City  of  Louisville  v.  Anderson,  79  Ky.  334. 

If  money  be  paid  through  a  clear  mistake  of  law,  and  which 
in  law  or  conscience  was  not  payable,  and  should  not  be  retained 
by  the  party  receiving  it,  it  may  be  recovered.  City  of  Nezuport 
V.  Ringo,  10  S.  W.  3. 

§  549.     Taxes  assessed  without  authority  of  law  are  void  and 

may  be  recovered  back. 

2  Desty  on  Tax.,  793  and  note  1. 
The  action  of  assumption  will  properly  lie  to  recover  back 
from  a  municipal  corporation  taxes  illegally  assessed  and  col- 
lected under  an  unconstitutional  law.     2  Desty  on  Tax.,  794, 
notes  7  and  9. 

The  case  of  City  of  Houston  v.  Feeser,  76  Tex.  365,  was  a 
voluntary  payment  from  the  facts  in  that  case,  that  there  was  no 
law  requiring  appellee  to  pay  the  tax  which  he  seeks  to  recover ; 
no  process,  civil  or  criminal,  had  issued  or  could  legally  issue  un- 
der which  his  person  or  property  could  be  seized. 


Right  to  Recover  Taxes  Paid.  315 

Where  taxes  improperly  collected  by  a  county  have  been  re- 
funded, the  county  can  not  thereafter  recover  the  amount  on  the 
ground  that  it  was  paid  under  mistake  of  law.  Graves  Co.  v. 
First  Nat.  Bank,  56  S.  W.  16. 

The  theory  upon  which  payments  for  taxes  are  considered  as 
voluntary  is,  as  stated  by  Mr.  Cooley  on  Taxation,  p.  809,  and  all 
other  authorities  on  this  subject,  because  "every  man  is  supposed 
to  know  the  law,  and  if  he  voluntarily  makes  a  payment  which 
the  law  would  not  compel  him  to  make,  he  can  not  afterwards 
assign  his  ignorance  of  the  law  as  the  reason  why  the  state  should 
furnish  him  with  legal  remedies  to  recover  it  back. 

§  550.     Illegal  tax — Payment  under  protest. 

One  who  pays  an  illegal  tax  under  protest  is  entitled  to  recover 
from  the  county  interest  thereon  from  the  date  of  payment.  Gal- 
veston County  V.  Galveston  Gas  Co.,  10  S.  W.  583,  72  Tex.  509. 

§  551.     Taxes  paid  to  prevent  sale  are  compulsory  and  can  be 
recovered. 

The  taxes  having  been  paid  under  protest  to  prevent  the  sale 
and  consequent  cloud  on  the  title,  the  payment  was  so  far  com- 
pulsory as  to  allow  of  a  recovery  back,  if  sought  with  reasonable 
promptness. 

The  necessity  for  action  was  sufficiently  immediate  and  urgent 
to  remove  the  payment  made  to  the  collector  from  the  class  of 
voluntary  payments. 

That  an  application  for  relief  had  been  made  to  the  county  com- 
missioners' court  and  refused,  would  not  bar  a  recovery  back 
of  the  taxes  illegally  paid  under  protest.  The  question  was  not 
one  of  valuation,  but  of  an  illegal  collection  of  money,  to  relieve 
against  which  the  county  court  or  board  of  equalization  had  no 
jurisdiction.  Gas  Co.  v.  Galveston  County,  54  Tex.  287;  City  of 
Marshall  v.  Sneidiker,  25  Tex.  471 ;  Baker  v.  Panola  County,  30 
Tex.  86;  Galveston  County  v.  Gorham,  49  Tex.  301. 

§  552.     When  taxes  paid  can  be  recovered. 

Money  collected  by  a  city  not  authorized  by  law  may  be  recov- 
ered whether  paid  under  compulsory  process  or  not.  Marshall 
V.  Sneidiker,  25  Tex.  472 ;  Baker  v.  Panola  Co.,  30  Tex.  93 ;  Gal- 
veston V.  Sydnor,  39  Tex.  241 ;  City  of  Newport  v.  Ringo,  10 
S.  W.  2 ;  Torbett  v.  City  of  Louisville,  4  S.  W.  346 ;  City  of  Louis- 
ville V.  Anderson,  79  Ky.  334. 


316  Taxation  in  Texas. 

If  money  be  paid  through  a  clear  mistake  of  law,  and  which  in 
law  or  conscience  was  not  payable,  and  should  not  be  retained  by 
the  party  receiving  it,  it  may  be  recovered.  City  of  Newport  v. 
Ringo,  10  S.  W.  3. 

Taxes  assessed  without  authority  of  law  are  void,  and  may  be 
recovered  back.    2  Desty  on  Tex.,  793  and  note  1. 

The  action  of  assumption  will  properly  lie  to  recover  back  from 
a  municipal  corporation  taxes  illegally  assessed  and  collected  un- 
der an  unconstitutional  law.    2  Desty  on  Tax,  794,  notes  7  and  9. 

§  553.     Right  to  recover  taxes  paid. 

Money  collected  as  taxes  by  a  city  under  an  ordinance  not  au- 
thorized by  its  charter  may  be  recovered  by  suit  at  law  whether 
the  tax  was  paid  under  compulsory  process  or  not.  Otherwise, 
if  the  money  had  been  collected  by  the  state  authority,  for  want 
of  power  to  sue  the  state.  City  of  Galveston  v.  Sydnor,  39  Tex. 
236. 

Where  illegally  assessed  taxes  are  paid  under  protest  after 
seizure,  the  money  paid  may  be  recovered  back  in  a  suit  promptly 
brought  against  the  officer  before  he  is  required  to  pay  it  over. 
Har desty  v.  Fleming,  57  Tex.  395. 

A  tax  was  imposed  by  the  legislature,  and  in  the  ordinary 
course  of  business  paid  by  persons  taxed  without  any  question 
having  been  made,  illegality  or  the  irregularity  of  the  collection 
of  that  part  of  it  claimed  by  the  county.  In  a  suit  to  recover  back 
a  portion  of  the  tax  claimed  to  have  been  illegally  assessed, 
held:  (1)  That  the  plaintiffs  did  not  have  the  right  to  bring  their 
suit  at  any  time  within  two  years  to  recover  back  that  portion  of 
the  tax  claimed  to  be  illegal.  (2)  The  tax  being  voluntarily  paid, 
it  was  not,  under  the  circumstances,  contrary  to  good  conscience 
for  the  county  to  retain  it.  Galveston  County  v.  Gorham,  49  Tex. 
279. 

After  the  entire  property  of  a  private  corporation  had  been 
listed  by  it  for  taxation,  the  county  assessor,  without  authority 
of  law,  made  a  further  assessment  on  the  corporation  for  prop- 
erty that  it  did  not  own,  and  the  land  of  the  corporation  was  ad- 
vertised by  the  collector  for  sale,  to  satisfy  said  illegal  assessment ; 
thereupon  the  corporation  paid  the  illegal  tax  under  protest.  Five 
months  after  payment  a  claim  for  the  return  of  the  money  was 
presented  to  the  commissioners'  court,  and  in  nine  months  more 
suit  was  brought  against  the  county.     Held:    (1)   That  under 


Right  to  Recover  Taxes  Paid.  317 

Sec.  13,  Art.  VIII,  of  the  Constitution  of  1876,  and  Sec.  18  of 
the  Act  of  August,  1876,  regulating  the  duties  of  tax  collectors, 
a  tax  sale  of  the  property  of  the  corporation  would  have  consti- 
tuted a  cloud  on  its  title.  (2)  The  taxes  having  been  paid  un- 
der protest  to  prevent  the  sale  and  consequent  cloud  on  the  title, 
the  payment  was  so  far  compulsory  as  to  allow  a  recovery  back, 
if  sought  with  reasonable  promptness.  (3)  Expressions  of  opin- 
ion in  Red  v.  Johnson,  53  Tex.  284,  noted  and  explained.  (4) 
The  necessity  for  action  was  sufficiently  immediate  and  urgent 
to  remove  the  payment  made  to  the  collector  from  the  class  of 
voluntary  payments.  (5)  That  an  application  for  relief  has  been 
made  to  the  county  commissioners'  court,  and  refused,  would 
not  bar  a  recovery  back  of  the  taxes  illegally  paid  under  protest. 
The  question  was  not  one  of  valuation,  but  of  an  illegal  collection 
of  money,  to  relieve  against  which  the  county  court  or  board  of 
equalization  had  no  jurisdiction.  Galveston  Gas  Co.  v.  County 
of  Galveston,  54  Tex.  237. 

The  right  to  recover  back  taxes  paid  under  protest  exists,  al- 
though the  taxpayer  had  not  appeared  before  the  board  of  equal- 
ization and  contested  the  assessment.  Hardesty  v.  Fleming,  57 
Tex.  395. 

§  554.     Voluntary  and  involuntary  payments. 

That  a  city  tax  collector,  in  his  receipt,  states  the  payment  of 
an  assessment  on  lands  to  have  been  made  under  protest,  does 
not  affect  the  character  of  the  payment  as  voluntary  or  involun- 
tary, where  the  lands  have  already  been  sold  under  the  law  re- 
garding delinquent  taxpayers,  and  bought  by  the  city,  and  the 
payment  is  afterwards  made  in  pursuance  of  an  agreement  be- 
tween the  former  owner  and  the  city.  Galveston  City  Co.  v. 
Galveston,  56  Tex.  486. 

The  proposition  of  a  property  owner  to  pay  such  assessment 
if  the  city  would  remit  the  interest  and  penalty  allowed  by  law, 
though  the  right  be  reserved  to  resort  to  the  courts  should  he 
thereafter  find  occasion,  evidences  a  voluntary  payment.  Gal- 
veston City  Co.  V.  Galveston,  56  Tex.  486. 

The  payment  of  an  illegal  demand  by  a  party  with  full  knowl- 
edge of  the  facts,  except  in  case  of  necessity,  as  to  protect  one's 
person  or  property,  is  deemed  voluntary.  Galveston  City  Co.  v. 
Galveston,  56  Tex.  486. 


318  .  Taxation  in  Texas. 

§  555.     Action  to  recover  taxes. 

Taxes  illegal  because  of  the  illegal  action  of  the  board  of 
equalization  may  be  recovered.    Gage  v.  Nevill,  3  W.  Civ.  274. 

§  556.     Right  to  recover  tax  paid  at  void  sale. 

Appellant  being  a  stranger  to  the  title  and  having  purchased  at 
a  void  tax  sale,  equity  will  not  subrogate  him  to  the  rights  of  the 
state  for  taxes  paid,  nor  entitle  him  to  be  reimbursed  by  the 
owner  in  a  suit  brought  by  her  to  recover  her  property.  Mumme 
V.  McCloskey,  66  S.  W.  854,  28  Tex.  Civ.  App.  83. 


CHAPTER  XXX. 

REMEDIES  OF  TAXPAYER. 

Sec.  Sec. 

557.  Cannot  mandamus  comptrol-      570,  Tax  collector's  deed  a  cloud 

ler  when.  on  title. 

558.  Injunction     will     not      issue      571.  Must  pay  tax  due  when. 

when.  572.  Cannot  enjoin  issue  of  bonds 

559.  May  enjoin  when.  — When. 

560.  Must  pay  amount  before  in-      573.  Taxes  on  void  bonds. 

junction  will   issue.  574  Right    of    taxpayer     to    raise 

561.  May  inquire  into  validity  of  objections  to  legality  of  tax 

taxes  after  sale  of  land.  levy  and  bond  issuance. 

562.  Payment  when  necessary.  575.  Certain    defenses    cannot    be 

563.  Lapse  of  time.  raised  in  suit  for  taxes. 

564.  Want  of  levy.  576.  Not  estopped  by  silence. 

565.  Extension  of  new  limits.  577.  Taxpayer  has  interest  to  en- 

566.  Valuation  of  property.  join. 

567.  Relief    granted    where    other      578.  Relief  from  void  sale. 

property    is    assessed    with      579.  Payment  of  taxes  not  a  con- 
owners,  dition  precedent  to  defense. 

568.  Burden  of  proof. 

569.  Irregularities  of  a  tax-roll. 

§  557.     Cannot  mandamus  comptroller  when. 

Rev.  St.,  Art.  5049,  Subd.  42,  providing  that  the  operators  of 
railroads  or  steamboats  within  the  state  shall  pay  a  tax  on  the 
gross  receipts  of  passenger  travel,  to  be  returned  under  oath  to 
the  comptroller,  and  the  tax  to  be  collected  by  him  under  such 
regulations  as  he  may  prescribe, '  does  not  make  it  the  duty  of 
the  comptroller  to  bring  suit  therefor. 

The  comptroller  could  not  be  compelled  to  institute  such  suit 
by  writ  of  mandamus,  though  it  were  his  duty  under  the  stat- 
ute. 

A  taxpayer  can  not  maintain  mandamus  to  compel  the  comp- 
troller to  institute  such  suit.  Lemright  v.  Love,  65  S,  W.  1089, 
95  Tex.  157. 

§  558.     Injunction  will  not  issue  when. 

A  court  of  equity  will  not,  at  the  instance  of  a  taxpayer,  en- 
join the  officers  of  a  municipal  government  from  collecting  taxes, 
on  the  ground  of  invalidity  of  the  existing  corporation;  such 


320  Taxation  in  Texas. 

issue  being  determinable  alone  by  quo  warranto  proceedings. 
Troutman  v.  McCleskey,  27  S.  W.  173,  7  Tex.  Civ.  App.  561. 

§  559.     May  enjoin  when. 

In  an  ordinary  case  involving  the  validity  of  a  tax,  either 
state  or  municipal,  on  constitutional  or  other  grounds,  which  may 
be  considered  and  determined  by  the  court  just  as  consistently 
with  public  policy  before  as  after  its  collection,  and  especially 
where  the  rights  of  a  large  number  of  persons  are  involved,  and 
a  number  of  suits  may  be  avoided,  and  individual  loss  and  dam- 
age prevented,  courts  may  properly  interpose  by  injunction  to 
prevent  the  collection  of  such  tax.  Blessing  v.  City  of  Calves  ten, 
42  Tex.  642 ;  George  v.  Dean,  A7  Tex.  84 ;  Harrison  v.  Vines,  46 
Tex.  15. 

A  misdescription  of  the  property  of  a  taxpayer  by  the  assessor, 
or  a  mere  irregularity  in  his  entry  of  it  upon  the  assessment  list 
or  roll,  furnishes  no  sufficient  ground  for  enjoining  the  collection 
of  a  tax,  for  which  the  plaintiff  was  justly  liable,  and  with  v.'hich 
his  property  had  been  legally  assessed  by  the  proper  officers 
charged  with  this  duty.    Ceorge  v.  Dean,  47  Tex.  84. 

When  the  collection  of  an  illegal  tax  is  about  to  be  enforced, 
one  or  more  persons  against  whom  the  tax  is  levied  may  enjoin 
its  collection.    Morris  v.  Cummings,  45  S.  W.  383,  91  Tex.  618. 

A  petition  to  enjoin  the  collection  of  a  tax  because  of  unlawful 
and  excessive  assessment  should  show  that  the  petitioner  had  used 
every  mode  provided  by  the  law  for  his  relief,  and  should  allege 
readiness  to  pay  the  tax  admitted  to  be  due.  R.  G.  R.  R.  Co.  v. 
Scawlan,  44  Tex.  649. 

A  petition  for  injunction  to  prevent  the  collection  of  a  state  tax, 
which  discloses  no  individual  damage  about  to  be  suffered  from 
the  sale  sought  to  be  enjoined,  except  that  the  sale  would  cast  a 
cloud  on  the  title  of  the  plaintiff,  is  not  sufficient  to  authorize 
the  injunction.    Red  v.  Johnson,  53  Tex.  284. 

See  in  this  connection  Gas  Co.  v.  Galveston  County,  54  Tex.  2. 

A  party  seeking  by  injunction  equitable  relief  against  an  alleged 
unauthorized  action  by  the  board  of  equalization,  must  establish 
clearly  facts  showing  that  the  board  had  acted  illegally  and  with- 
out authority.    /.  &  G.  N.  Ry.  Co.  v.  Smith  County,  54  Tex.  2. 

An  injunction  will  lie  to  restrain  the  sale  of  property  levied 
upon  to  satisfy  a  tax  illegally  assessed,  where  the  invalidity  does 


Remedies  of  Taxpayer.  321 

not  appear  on  the  face  of  the  assessment  roll.    Cook  v.  G.  H.  & 
S.  A.  Ry.  Co.,  24  S.  W.  544,  5  Tex.  Civ.  App.  644. 

Not  necessary  to  apply  to  board  of  equalization  to  enjoin  ille- 
gal tax  as  the  jurisdiction  of  board  extends  only  to  questions  of 
valuation.    Davis  v.  Burnett,  13  S.  W.  613,  77  Tex.  3. 

§  560.     Must  pay  amount  due  before  injunction  will  issue. 

Before  a  citizen  is  entitled  to  an  injunction  to  restrain  the  col- 
lection of  taxes  illegally  assessed  on  a  portion  of  his  property 
only,  it  is  his  duty  to  demand  a  reduction  for  the  amount  im- 
properly assessed,  and  pay  so  much  of  the  assessment  as  is  legally 
due  from  him.    Rosenberg  v.  Weekes,  67  Tex.  579. 

§  561.     May  inquire  into  validity  of  taxes  after  sale  of  land. 

A  statute  declaring  that  a  tax  collector's  deed  shall  be  con- 
clusive that  the  land  was  properly  advertised  for  sale,  and  was 
sold  for  taxes  as  therein  stated,  that  the  grantee  was  the  pur- 
chaser, and  that  the  sale  was  conducted  in  the  manner  prescribed 
by  law,  and  declaring  that  a  person  claiming  adversely  to  it  shall 
prove  either  that  the  land  was  not  subject  to  taxation,  or  that 
the  taxes  had  been  paid,  or  that  the  land  had  never  been  listed 
and  assessed,  or  had  been  redeemed,  etc.,  does  not  preclude  in- 
quiry into  the  validity  of  the  taxes. 

A  statute  providing  that  no  one  shall  be  permitted  to  question 
a  tax  title  without  first  showing  that  all  the  taxes  due  on  the  land 
have  been  paid,  etc.,  refers  only  to  taxes  lawfully  assessed  upon 
the  land  itself.  Lufkin  v.  City  of  Galveston,  11  S.  W.  340,  73 
Tex.  340. 

§  562.     Payment  when  necessary. 

A  property  owner  who  seeks  equitable  relief  from  an  excessive 
tax  may  be  required  to  pay  the  legal'  tax  as  a  condition  to  the 
granting  of  relief.    Conklin  v.  City  of  Henrietta,  44  S.  W.  880. 

Sayles  Civ.  St.,  Art.  447,  is  unconstitutional  in  so  far  as  it 
requires  the  payment  of  taxes  precedent  to  making  a  defense 
against  a  void  claim  of  title  under  an  illegal  tax  sale.    Eustis  v. 
City  of  Henrietta,  43  S.  W.  259,  91  Tex.  325. 
§563.     Lapse  of  time. 

A  party  is  not  prevented,  by  mere  lapse  of  time,  from  ques- 
tioning the  right  of  a  city  to  exercise  a  power  which  it  has  as- 
sumed and  asserted  without  authority.     Conklin  v.  City  of  El 
Paso,  44  S.  W.  880. 
21 


322  Taxation  in  Texas. 

§  564.     Want  of  levy. 

A  property  owner  is  entitled  to  set  up  and  show  want  of  au- 
thority to  levy  a  tax  as  a  defense  to  an  action  to  recover  it,  Conk- 
lin  V.  City  of  El  Paso,  44  S.  W.  880. 

§  565.     Extension  of  new  limits. 

Where  a  city  has  voted  to  extend  its  limits,  without  the  consent 
of  the  electors  of  the  territory  sought  to  be  annexed,  an  injunc- 
tion will  lie  to  restrain  taxes  levied  by  the  city  on  such  territory. 
Brennan  v.  Bradshaw,  53  Tex.  330,  and  Graham  v.  City  of  Green- 
ville, 2  S.  W.  742,  67  Tex.  63,  distinguished.  Lum  v.  City  of 
Bowie,  18  S.  W.  142. 

§  566.     Valuation  of  property. 

The  remedy  against  a  fraudulent  assessment  by  the  assessor 
is  to  review  the  assessment  before  the  board  of  appraisers.  Moody 
V.  Galveston,  50  S.  W.  482,  21  Tex.  Civ.  App.  16. 

§  567.  Relief  granted  where  other  property  is  assessed  with 
owners. 
Where  the  assessor  includes  in  his  assessment  property  not 
owned  by  the  citizen,  or  a  greater  amount  than  is  taxable,  the 
latter  is  entitled  to  relief,  though  he  did  not  render  his  property 
as  provided  by  the  statute.  Moody  v.  City  of  Galveston,  50  S. 
W.  483,  21  Tex.  Civ.  App.  16;  Griffin  v.  Heard,  78  Tex.  608,  14 
S.  W.  892. 

§  568.     Burden  of  proof. 

One  attempting  to  escape  the  payments  of  a  tax,  on  the  ground 
that  municipal  debts  are  invalid,  has  the  burden  of  proving  it. 
Winston  v.  City  of  Ft.  Worth,  47  S.  W.  740. 

§  569.  .  Irregularities  of  a  tax-roll. 

Although  a  tax  collector  would  be  a  trespasser  and  subject  to 
damages,  if  he  should  seize  and  sell  property  for  the  collection 
of  a  valid  tax,  without  a  sufficient  warrant  for  its  collection,  the 
invalidity  of  the  assessment  roll  or  process  affords  no  sufficient 
ground  for  the  interference  of  a  court  of  equity,  unless  the  party 
asking  its  aid  is  ready  to  do  equity  by  paying  the  amount  of  the 
tax  legally  due  from  him.  George  v.  Dean,  47  Tex.  85 ;  Harrison 
V.  Vines,  46  Tex.  15. 


Remedies  of  Taxpayer.  323 

§  570.     Tax  collector's  deed  a  cloud  on  title. 

A  collector's  deed  to  property  subject  to  taxation  and  sold  in 
accordance  with  law  vests  a  good  and  perfect  title,  which  can 
only  be  impeached  for  actual  fraud.  Such  a  deed  would,  there- 
fore, constitute  a  cloud  upon  the  title  of  land  regularly  sold,  but 
not  liable  for  the  tax,  to  prevent  or  remove  which  equity  may 
be  invoked.    Cassiano  v.  Ursuliwe  Academy,  64  Tex.  573. 

§  571.     Must  pay  tax  due  when. 

A  property  owner  who  seeks  equitable  relief  from  an  excessive 
tax  may  be  required  to  pay  the  legal  tax  as  a  condition  to  the 
granting  of  relief.    Conklin  v.  City  of  El  Paso,  44  S.  W.  879. 

§  572.     Cannot  enjoin  issue  of  bonds  when. 

A  taxpayer  can  not  enjoin  the  issue  of  bonds  voted  by  a  city, 
but  which  would  be  void  even  in  the  hands  of  a  bona  fide  pur- 
chaser, since  neither  he  nor  the  city  would  suffer  injury  from  the 
issue.    Bolton  v.  City  of  San  Antonio,  21  S.  W.  64. 

§  573.     Taxes  on  void  bonds. 

A  city  can  not  recover  from  a  taxpayer  taxes  levied  to  create 
a  sinking  fund  for  and  to  pay  interest  on  void  bonds.  City  of 
Tyler  v.  Tyler  Building  &  Loan  Assn.,  86  S.  W.  750,  99  Tex.  6. 

Taxpayers  can  defend  against  the  assessment  of  taxes  to  pay 
interest  and  create  a  sinking  fund  on  void  municipal  bonds,  but 
they  must  prove  conclusively  that  the  bonds  are  void  in  the  hands 
of  any  holder,  and  can  not  afiford  a  basis  of  recovery  against  the 
city.  City  of  Tyler  v.  Tyler  Building  &  Loan  Assn.,  86  S.  W. 
750,  99  Tex.  6. 

§  574.     Right  of  taxpayer  to  raise  objections  to  legality  of  tax 
levy  and  bond  issuance. 

When  a  tax  is  asserted,  the  taxpayer  is  entitled  to  show  the 
want  of  authority  to  impose  the  tax,  and,  if  the  existence  of  the 
power  depends  on  certain  facts,  he  may  show  that  such  facts 
never  existed.  We  do  not  regard  this  as  a  collateral  attack  upon 
the  tax,  but  the  assertion  of  defensive  matter,  that  the  defendant 
may  properly  present.  Mr.  Cooley  says :  "It  will  be  a  good  de- 
fense to  the  suit  that  the  tax  for  any  reason  is  illegal."  (Cooley 
on  Taxation,  p.  435.)  If  he  can  not  raise  the  question  in  a  suit 
against  him  for  the  tax  it  is  difficult  to  conceive  how  the  question 


324  Taxation  in  Texas. 

could  be  raised,  or  by  whom.    Conklin  v.  City  of  El  Paso,  44  S. 
W.  882 ;  Berry  v.  City  of  San  Antonio,  46  S.  W.  273,  92  Tex.  319. 

§  575.     Certain  defenses  cannot  be  raised  in  suit  for  taxes. 

In  a  suit  by  a  city  declared  by  resolution  of  its  council  to  have 
a  population  of  over  10,000,  for  taxes  levied  under  the  authority 
conferred  on  cities  of  over  10,000,  the  taxpayer  can  not  raise  the 
question  whether  the  city  had  10,000  inhabitants,  which  can  only 
be  done  by  a  quo  warranto  proceeding  for  the  dissolution  of  the 
corporation. 

A  taxpayer  sued  for  taxes  levied  to  pay  waterworks  bonds  can 
not  set  up  irregularities  in  the  issuance  of  the  bonds  as  a  de- 
fense. City  of  Tyler  v.  Tyler  Building  &  Loan  Assn.,  81  S.  W.  2, 
98  Tex.  69. 

§  576.     Not  estopped  by  silence. 

The  inhabitants  of  a  city  are  not  estopped  from  contesting  the 
validity  of  bonds  by  standing  by  in  silence  and  permitting  the 
bonds  to  be  issued,  nor  is  the  municipality  estopped  by  a  knowl- 
edge and  long  acquiescence  in  the  act  of  the  officers  issuing  them 
and  by  the  levy  of  taxes  and  payment  of  interest.  15  Amer.  & 
Eng.  Ency.  of  Law,  pp.  1137,  1138;  Hainer  on  Municipal  Securi- 
ties, Sec.  437. 

§  577.     Taxpayer  has  interest  to  enjoin. 

A  taxpayer  has  sufficient  interest  to  enable  him  to  maintain  a 
suit  to  enjoin  municipal  authorities  from  paying  an  illegal  debt. 
15  Amer.  &  Eng.  Ency.  of  Law,  p.  1140;  School  Trustees  v. 
Dow,  63  S.  W.  1027. 

§  578.     Relief  from  void  sale. 

A  proceeding  by  the  owners  of  land  to  obtain  relief  from  a  void 
tax  judgment  and  sale,  was  properly  brought  in  the  form  of  a 
motion  to  set  aside  the  judgment  and  sale,  accompanied  with  a 
tender  of  the  taxes  and  costs  due,  rather  than  by  a  motion  to  retax 
the  costs  taxed  against  them'  in  the  tax  suit.  Crosby  v.  Terry, 
91  S.  W.  653,  41  Tex.  Civ.  App.  594. 

§  579.  Payment  of  taxes  not  a  condition  precedent  to  defense. 
In  so  far  as  Rev.  St.  1895,  Art.  518,  requires  payment  of  taxes 
as  precedent  to  making  defense  to  a  void  claim  of  title  under  a 
tax  sale,  it  refuses  him  remedy  by  due  course  of  law  for  an  injury 
to  his  right  of  property,  and  deprives  him  of  his  property  without 


Remedies  of  Taxpayer.  325 

due  course  of  law,  in  violation  of  State  Const.,  Art.  1,  Sec.  13, 
which  provides  all  courts  shall  be  open  and  every  person  for  in- 
jury done  him  in  his  lands,  goods,  person  or  reputation  sha,ll 
have  remedy  by  due  course  of  law,"  and  Section  19  that  "No  cit- 
izen of  this  state. shall  be  deprived  of  life,  liberty,  property,  privi- 
leges or  immunities,  or  in  any  manner  disfranchised,  except  by 
the  due  course  of  the  law  of  the  land."  Eustis  v.  City  of  Henri- 
etta, 39  S.  W.  567,  90  Tex.  468. 


CHAPTER  XXXI. 


REDEMPTION. 


Sec. 

580.  Redemption   under   summary 

sale. 

581.  Land  sold  to  State. 

582.  Land   sold   for   city   or  town 

taxes. 

583.  An  act  to  permit  the  owners 

of  land  or  lots  sold  to  the 
State  or  to  any  city  or  town 
for  taxes  to  redeem  the 
same. 

584.  Who  may  redeem. 

585.  Land  sold  to  State,  or  city — 

Act  30th  Legislature. 

586.  Land  sold  to  State  or  to  any 

city  or  town. 

587.  Sec.   13,   Article   8  of  Consti- 

tution, refers  to  summary 
sales. 

588.  Right  to  hold  possession  un- 

til period  of  redemption  has 
expired. 

589.  No    right    to    redeem    under 

city  charter  containing  no 
redemption  provision. 

590.  Judgment — ^Writ     of    posses- 

sion. 


Sec. 

591.  Property  sold  for  taxes  prior 

to  1895. 

592.  Persons  entitled  to  redeem. 

593.  Under  charter  city  of  Hous- 

ton. 

594.  Right   to    refuse    redemption 

of  part  of  tract. 

595.  Owner   may  redeem   by  pay- 

ment to  the  purchaser,  even 
if  he  had  sold  to  another. 

596.  Title   remains   until  time   of 

redemption. 

597.  Right    to    redeem    for    taxes 

before  law  of  redemption. 

598.  Tender  may  be  made  through 

agents. 

599.  Effect  of  tender. 

600.  Collectors    entitled    to    what 

fees. 

601.  Property     of     infant,     feme 

covert  or  lunatic. 

602.  Judgment     does     not     affect 

right  to  redeem. 

603.  After  two  years  title  perfect. 

604.  Right   of   redemption    before 

sale. 

605.  Redemption  after  sale. 


§  580.     Redemption  under  summary  sale. 

Under  the  Act  of  1875,  p.  113,  Sec.  100,  authorizing  the  as- 
sessors and  collectors  of  cities  and  towns  to  proceed  summarily 
to  sell  property  for  taxes  due  on  it  by  ex  parte  sales  and  make- 
deeds  to  purchasers,  it  was  provided,  however,  that  the  owner 
of  such  property  shall  have  the  right  to  redeem  the  same  at  any 
time  within  two  years  of  the  day  and  date  of  the  sale  thereof, 
upon  paying  to  the  purchaser  double  the  amount  of  taxes  for 
which  the  same  was  sold,  together  with  the  costs  of  such  sale  and 
double  the  amount  of  all  taxes  paid  by  the  purchaser  since  such 
sale.    Sayles  R.  S.,  Art.  518. 


Redemption.  327 

§  581.     Land  sold  to  state. 

That  the  owner  or  any  one  having  an  interest  in  land  or  lots 
heretofore  sold  to  the  state,  or  which  may  hereafter  be  sold  to 
the  state  for  taxes  under  decree  of  court,  as  provided  in  Acts  of 
1895,  Chap.  42,  1897,  Chap.  103,  and  1899,  Chap.  65,  shall  have 
the  right  within  two  years  from'  the  date  of  such  sale  to  redeem 
the  same  upon  payment  of  double  the  amount  of  taxes  and  pen- 
alty for  which  sale  was  made,  together  with  all  costs  and  interest 
now  required  by  law;  provided,  that  at  any  time  within  twelve 
months  from  the  date  of  such  sale  redemption  may  be  made  upon 
the  payment  of  the  amount  of  taxes,  penalty  and  interest  for 
which  judgment  has  been  rendered,  with  six  per  cent  interest 
thereon  front  date  of  judgment,  and  all  costs  adjudged  against 
the  land ;  provided,  that  where  lands  have  been  heretofore  sold 
to  the  state  for  taxes  under  order  of  court,  and  two  years  have 
already  expired  since  such  sale,  the  owner  of  such  land  shall  have 
the  right  to  redeem  said  land  within  two  years  after  the  passage 
of  this  act  upon  payment  of  all  costs  and  interest  and  double  the 
amount  of  the  delinquent  tax.  (Acts  First  Special  Sess.  1901,  p. 
26.)     Sayles  St.  (Sup.),  Art.  5187a. 

§  582.    .Land  sold  for  city  or  town  taxes. 

That  all  lands  sold  under  and  by  virtue  of  decree  and  judg- 
ment of  court  for  taxes  due  any  incorporated  city  or  town  within 
this  state  may  be  redeemed  by  the  owner  or  owners  thereof 
within  two  years  from  the  date  of  deed  upon  the  payment  to  the 
purchaser,  or  his  assigns,  of  double  the  amount  so  paid,  including 
costs  of  court ;  provided,  that  purchaser  at  such  foreclosure  sale, 
and  his  assigns,  shall  not  be  entitled  to  the  possession  of  the  prop- 
erty sold  for  taxes  until  the  expiration  of  two  years  from  the 
date  of  deed.    (Acts  1899,  p.  50.)     Sayles  St.  (Sup.),  Art.  5198a. 

§  583.     An  act  to  permit  the  owners  of  land  or  lots  sold  to  the 

state  or  to  iany  city  or  town  for  taxes  to  redeem  the 

same. 

Section  1.     Be  it  enacted  by  the  Legislature  of  the  State  of 

Texas :   That  the  owner  or  any  one  having  an  interest  in  land  or 

lots  heretofore  sold  to  the  state  or  any  city  or  town,  or  which 

may  hereafter  be  sold  to  the  state  or  to  any  city  or  town  for 

taxes  under  decree  of  court,  as  provided  in  Acts  of  1895,  Chap. 

42,  and  1897,  Chap.  103,  shall  have  the  right  within  two  years 


328  Taxation  in  Texas. 

from  the  date  of  such  sale  to  redeem  the  same  upon  payment  of 
double  the  amount  of  taxes  for  which  sale  was  made,  together 
with  all  costs,  penalty  and  interest  now  required  by  law;  pro- 
vided, that  where  lands  or  lots  have  heretofore  been  sold  to  the 
state  or  to  any  city  or  town  for  taxes  under  order  of  court,  the 
owner  of  such  land  or  lots  shall  have  the  right  to  redeem  the  same 
within  two  years  after  the  passage  of  this  act;  provided,  that  at 
any  time  within  twelve  months  from  the  date  of  such  sale  redemp- 
tion may  be  made  upon  payment  of  the  amount  of  taxes,  penalty 
and  interest  for  which  judgment  has  been  entered,  with  ten  per 
cent  interest  thereon  from  date  of  judgment,  and  all  costs  ad- 
judged against  the  land.    Act  of  1905,  p.  323. 

§  584.     Who  may  redeem. 

Section  1.  That  in  all  cases  where  lands  in  this  state  have  been, 
or  may  be  sold  for  taxes,  and  the  owner  of  the  land  at  the  time  of 
such  sale,  shall  desire  to  redeem  the  same,  under  the  provisions 
of  the  constitution  of  this  state  or  of  laws  enacted  on  that  sub- 
ject, it  shall  be  sufficient  to  entitle  such  owner  to  redeem  from  the 
purchaser  or  purchasers  thereof,  for  him  to  have  had  a  paper  title 
to  such  land,  or  to  have  been  in  possession  of  such  land  in  per- 
son or  by  tenant,  at  the  time  of  the  institution  of  the  suit  under 
which  the  sale  was  made,  or  when  such  sale  was  made,  and  the 
existence  of  such  facts  and  conditions  shall  be  sufficient  prima 
facie  evidence  of  ownership  to  entitle  the  party  so  claiming  own- 
ership to  the  right  to  redeem  such  land,  and  he  shall  not  be  re- 
quired to  deraign  title  from  the  sovereignty,  nor  shall  any  hiatus 
or  defect  in  his  chain  of  title  defeat  the  offered  redemption. 
Nothing  herein  contained  shall  be  held  to  limit  the  right  of  one 
offering  to  redeem  to  prove  ownership  otherwise  than  herein  pro- 
vided, nor  prevent  any  one  having  the  superior  title  from  redeem- 
ing such  land  within  two  years  from  the  date  of  the  tax  sale  by 
paying  to  the  person  who  had  previously  redeemed  such  lands  all 
amounts  paid  by  him  with  legal  interest.    Act  of  1905,  p.  118. 

§  585.     Land  sold  to  state,  or  city — Act  30th  legislature. 
Be  it  enacted  by  the  legislature  of  the  state  of  Texas : 
Section  1.     That  section  1,  Chapter  132  of  the  Acts  of  the 

Regular  Session  of  the  Twenty-ninth  Legislature,  be  amended  so 

that  it  shall  hereafter  read  as  follows : 

Section  1.     That  the  owner  or  any  one  having  an  interest  in 

lands  or  lots  heretofore  sold  to  the  state,  or  any  city  or  town  un- 


Redemption.  329 

der  decree  of  court  in  any  suit  or  suits  brought  for  the  collection 
of  the  taxes  thereon,  or  by  a  collector  of  taxes  or  otherwise,  shall 
have  the  right  within  two  years  from  the  time  this  act  goes  into 
effect  to  redeem  the  same  upon  the  payment  of  the  amount  of 
taxes  for  which  sale  was  made,  together  with  all  costs,  penalties 
and  interest  now  required  by  law,  and  also  the  payment  of  all 
taxes,  interest,  penalties  and  costs  on  or  against  said  lands  or  lots 
at  the  time  of  said  redemption. 

And  where  lands  or  lots  shall  hereafter  be  sold  to  the  state,  or 
to  any  city  or  town  for  taxes  under  decree  of  court  in  any  suit 
or  suits  brought  for  collection  of  taxes  thereon,  or  by  a  collector 
of  taxes  or  otherwise,  the  owner  having  an  interest  in  such  lands 
or  lots  shall  have  the  right  to  redeem  the  same  within  two  years 
after  such  sale,  upon  payment  of  the  amount  of  taxes  for  which 
sale  was  made,  together  with  all  costs,  penalties  and  interest  now 
required  by  law ;  and  also  the  payment  of  all  the  taxes,  interest, 
penalties,  cost  on  or  against  said  land  or  lots  at  the  time  of  re- 
demption.   Act  of  30th  Leg.,  p.  282  (Apr.  19th,  1907). 

§  586.     Land  sold  to  state  or  to  any  city  or  town. 

Section  1.  That  Section  1,  Chapter  132  of  the  Acts  of  the  Reg- 
ular Session  of  the  Twenty-ninth  Legislature,  as  amended  by 
Chapter  145,  Acts  of  the  Thirtieth  Legislature,  be  amended  so 
that  it  shall  hereafter  read  as  follows : 

Section  1.  That  the  owner  or  any  one  having  an  interest  in 
lands  or  lots  heretofore  sold  to  the  state  or  any  city  or  town  un- 
der decree  of  court  in  any  suit  or  suits  brought  for  the  collection 
of  the  taxes  thereon  or  by  a  collector  of  taxes  or  otherwise,  shall 
have  the  right  within  two  years  from  the  time  this  act  goes  into 
eflfect  to  redeem  the  same  upon  the  payment  of  the  amount  of 
taxes  for  which  sale  was  made,  together  with  all  costs,  penalties 
and  interest  now  required  by  law,  and  also  the  payment  of  all 
taxes,  interest,  penalties  and  costs  on  or  against  said  lands  or  lots 
at  the  time  of  said  redemption.  And  where  lands  or  lots  shall 
hereafter  be  sold  to  the  state  or  to  any  city  or  town  for  taxes 
under  decree  of  court  in  any  suit  or  suits  brought  for  collection 
of  taxes  thereon,  or  by  a  collector  of  taxes  or  otherwise,  the  own- 
er having  an  interest  in  such  lands  or  lots  shall  have  the  right  to 
redeem  the  same  within  two  years  after  such  sale  upon  payment 
of  the  amount  of  taxes  for  whi'=h  sale  was  made,  together  with  all 


330  Taxation  in  Texas. 

costs,  penalties  and  interest  now  required  by  law ;  and  also  the 
payment  of  all  the  taxes,  interest,  penalties,  cost  on  or  against 
said  land  or  lots  at  the  time  of  redemption.  Act  of  31st  Leg.,  p. 
400. 

§  587.  Section  13,  Article  8,  of  Constitution,  refers  to  summary 
sales. 
We  are  also  of  opinion  that  Sec.  13  of  Art.  8  of  the  Constitu- 
tion does  not  bear  upon  the  question.  The  right  of  redemption 
which  was  secured  to  the  owner  by  that  section  applies  only  to 
"the  speedy  sale"  for  which  the  legislature  was  required  to  make 
provision.  The  language  of  the  section  itself  makes  this  mani- 
fest. It  is  as  follows :  "Provision  shall  be  made  by  the  first  leg- 
islature for  the  speedy  sale  of  a  sufficient  portion  of  all  lands  and 
other  property  for  the  taxes  due  thereon,  and  every  year  there- 
after, for  the  sale  of  all  lands  and  other  property  upon  which 
the  taxes  have  not  been  paid,  and  the  deed  of  conveyance  to  the 
purchaser  for  all  lands  and  other  property  thus  sold  shall  be  held 
to  vest  a  good  and  perfect  title  in  the  purchaser  thereof,  subject 
to  be  impeached  only  for  actual  fraud ;  provided,  that  the  former 
owner  shall,  within  two  years  fron>  date  of  purchaser's  deed 
have  the  right  to  redeem  the  land  upon  payment  of  double  the 
amount  of  money  paid  for  the  land."  The  proviso  in  which  the 
right  of  redemption  is  given  makes  the  period  begin  from  the 
date  of  the  purchaser's  deed,  and  the  deed  referred  to  is  that 
previously  mentioned ;  that  is,  to  "the  land  thus  sold."  Clearly, 
by  "land  thus  sold"  is  meant  the  land  which  was  to  be  sold  under 
the  summary  remedy  which  the  legislature  was  to  provide.  City 
of  San  Antonio  v.  Berry,  48  S.  W.  500,  92  Tex.  319. 

§  588.     Right  to  hold  possession  until  period  of  redemption  has 
expired. 

It  was  error  for  the  judgment  of  foreclosure  for  delinquent 
taxes  to  direct  that  the  order  of  sale  should  have  the  effect  of  a 
writ  of  possession,  as  the  law  allows  the  owner  two  years  in  which 
to  redeem,  and  he  is  entitled  to  possession  during  that  time. 
League  v.  State,  56  S.  W.  262,  93  Tex.  553. 

§  589.     No  right  to  redeem  under  city  charter  containing  no 
redemption  provision. 

Const.,  Art.  8,  Sec.  13,  requiring  the  legislature  to  provide  for 
the  speedy  sale  of  property  for  taxes,  and  allowing  the  owners 


Redemption.  331 

to  redeem  within  two  years,  does  not  apply  to  a  sale  under  a 
suit  to  foreclose  a  tax  lien,  brought  under  a  municipal  charter 
which  contains  no  redemption  provision.  Collins  v.  Ferguson, 
56  S.  W.  225,  22  Tex.  Civ.  App.  552. 

§  590.     Judgment — Writ  of  possession. 

A  judgment  for  the  sale  of  land  for  delinquent  taxes  should 
withhold  the  writ  of  possession  until  the  expiration  of  the  time 
for  redemption.  Ryon  v.  Davis,  75  S.  W.  59,  32  Tex.  Civ.  App. 
500. 

§  591.     Property  sold  for  taxes  prior  to  1895. 

Where  property  has  been  sold  for  taxes  prior  to  1895,  and  the 
property  owner  has  only  the  right  to  redeem  by  paying  double 
the  taxes,  or  where  his  right  to  redeem  has  expired,  he  can  not 
avail  himself  of  Act  1895,  Chap.  5a  (Rev.  St.  1895,  Arts.  5232a  et 
seq.),  relating  to  tax  sales  and  foreclosure  of  tax  liens,  and  re- 
deem from  such  sales,  except  on  the  terms  the  act  provides,  where 
the  limit  of  recovery  it  fixes  is  less  than  the  original  liability. 
Conklin  v.  City  of  El  Paso,  44  S.  W.  880. 

§  592     Persons  entitled  to  redeem. 

The  widow  and  daughter  of  a  deceased  land  owner  holding 
possession  of  the  premises  by  tenant  have  such  an  interest  in 
the  land  as  entitles  them  under  Sayles  Ann.  Civ.  St.  1897,  Art. 
5232n,  to  redeem  the  land  from  sale  for  taxes  within  two  years. 

Where  the  judgment  under  which  defendant  claims  was  a 
foreclosure  of  a  tax  lien  against  "unknown  owners  and  M.,"  re- 
citing that  they  "own  or  claim  some  right  to,  or  interest  in,"  the 
land,  defendant  can  not  dispute  the  right  of  plaintiffs  as  heirs  of 
M.  to  redeem  such  interest.    Jackson  v.  Maddox,  117  S.  W.  185. 

§  593.     Under  charter  city  of  Houston. 

Under  City  Charter  (Sp.  Acts  29th  Leg.  1905,  p.  147,  Chap. 
17),  Art.  3,  Sec.  8,  providing  that  in  suits  for  taxes  due  the 
city  the  proper  persons  shall  be  made  parties  defendants,  etc., 
and  that  the  deed  made  under  the  sale  shall  vest  a  perfect  title 
in  the  purchaser,  means  a  perfect  title  as  against  the  parties  to 
the  suit,  and  hence  an  incumbrancer  not  made  a  party  to  the  tax 
suit  had  the  same  right  to  redeem  from  the  tax  lien  as  he  had 
before  the  tax  sale ;  the  purchaser  at  such  sale  being,  as  to  him, 
subrogated  only  to  the  lien  of  the  city  for  taxes,  penalties,  and 
costs,  not  including  the  costs  of  the  tax  suit  and  sale. 


332  Taxation  in  Texas. 

Houston  City  Charter  (Sp.  Acts  29th  Leg.  1905,  p.  149,  Chap. 
17),  Art.  3,  Sec.  11,  requiring  an  owner  redeeming  from  a  tax 
sale  to  pay  double  the  amount  paid  by  the  purchaser,  applies 
solely  to  the  summary  sale  by  the  tax  collector,  and  has  no  ap- 
plication to  a  sale  under  a  judgment  of  foreclosure  of  the  lien, 
the  procedure  for  which  is  prescribed  by  Section  8. 

One  entitled  to  redeem  from  a  tax  sale  is  liable  to  the  pur- 
chaser for  interest  on  the  amount  due  only  from  the  date  of  the 
sale  to  the  time  he  tenders  such  amount  to  the  purchaser  and 
offers  to  redeem.  Blair  v.  Guaranty  Savings,  Loan  &  Investment 
Co.,  118  S.  W.  608. 

§  594.     Right  to  refuse  redemption  of  part  of  tract. 

The  owner  of  part  of  a  tract  of  land  sold  under  a  judgment  for 
non-payment  of  taxes  wrote  to  the  person  holding  title  under  the 
judgment,  stating  that  he  desired  to  redeem  his  interest  in  the 
land,  and  the  holder  under  the  judgment  replied  that  he  would 
be  unwilling  that  a  portion  only  of  the  land  should  be  redeemed, 
and  no  tender  of  the  amount  due  was  made,  nor  was  any  offer 
made  by  the  owner  in  his  pleadings,  in  an  action  which  he  brought 
of  trespass  to  try  title,  or  upon  the  trial  of  the  suit.  Held,  that 
there  was  no  wrongful  refusal  of  permission  to  redeem  the  land. 
Blmton  V.  Nunley,  119  S.  W.  881. 

§  595.  Owner  may  redeem  by  paying  to  the  purchaser,  even 
if  he  had  sold  to  another. 
Under  Rev.  St.  1895,  Art.  5187,  providing  that  the  owner  of 
real  estate  sold  for  taxes  may  within  two  years  after  the  sale 
redeem  "by  paying  or  tendering  to  the  purchaser,  his  heirs  or 
legal  representatives,  double  the  amount  paid  for  the  land,"  pay- 
ment may  be  made  to  the  purchaser,  although  he  had  transferred 
his  interest  in  the  property,  and  the  owners  had  notice  of  such 
transfer,  as  the  word  "purchaser,"  as  used  in  the  statute,  applies 
only  to  the  party  who  purchases  at  the  tax  sale,  such  statutes 
being  liberally  construed  in  favor  of  the  owner,  and  such  right 
is  not  affected  by  a  judgment  in  an  action  by  the  owners  against 
the  original  purchasers  in  which  the  right  to  redeem  was  con- 
ferred on  the  owners  by  payment  or  tender  of  the  amount  due  to 
the  purchasers  or  those  holding  under  them.  Turner  v.  Smith, 
119S.  W.  922. 


Redemption.  333 

§  596.     Title  remains  until  time  of  redemption. 

Where  a  statute  confers  upon  the  owner  the  right  to  redeem 
from  a  tax  sale,  his  title  is  not  extinguished  until  the  time  for 
redemption  has  expired. 

Redemption  from  a  tax  sale  gives  no  new  title,  it  simply  re- 
lieves the  land  from  the  sale  which  has  been  made,  and  this  is 
true  whether  the  redemption  is  made  before  the  statutory  time 
has  expired  or  by  consent  of  the  purchaser  afterwards.  Bente 
V.  Stdlivain,  115  S.  W.  350;  Turner  v.  Smith,  119  S.  W.  925. 

§  597.     Right  to  redeem  for  taxes  before  law  of  redemption. 

A  right  to  redeem  from  a  tax  sale,  authorized  by  statute  and 
city  charter,  applies  to  a  sale  by  a  city,  under  a  judgment  for 
taxes  made  after  the  enactment  of  the  statute  or  charter  author- 
izing the  redemption,  though  the  taxes  for  which  the  city  ob- 
tained its  judgment  accrued  for  years  prior  to  the  time  that  there 
existed  any  general  law  or  city  charter  provision  for  redemption. 
Bente  v.  Sullivan,  115  S.  W.  350. 

§  598.     Tender  may  be  made  through  agents. 

We  disagree  with  appellants  in  the  objections  made  to  the  fore- 
closure sale  for  the  taxes  of  1898,  through  which  appellees  claim, 
we  nevertheless  hold  that  the  tender  made  appellees  in  redemp- 
tion of  such  sale  was  sufficient  under  Article  5232n,  Rev.  St.  It 
is  undisputed  that  the  tender  of  a  sufficient  amount  was  made 
within  the  time  required  by  laiv,  and  we  can  not  think  that  the 
mere  fact  that  the  tender  was  made  through  an  agency  not  known 
by  the  purchaser  to  have  any  interest  in  the  land  could  affect  the 
question.  The  real  owner  is  given  the  right  by  the  statute  to 
redeem,  and  we  know  of  no  law  which  required  the  owner  to  ex- 
hibit his  evidences  of  right  at  the  time  of  redemption. 

In  the  instance  before  us  appellants'  agent  in  the  town  of  Gra- 
ham arranged  with  the  bank  at  that  place,  by  'phone,  to  procure 
the  bank  at  Albany,  Texas,  to  make  the  tender,  which  was  re- 
fused because  the  purchasers  did  not  believe  or  understand  that 
the  bank  at  Albany  had  any  interest  in  the  lands  in  controversy. 
No  reason  appears  why,  if  deemed  material,  proper  inquiry  would 
not  have  led  to  full  disclosure  of  the  parties  appellant  in  whose 
interest  the  tender  was  really  made.  Logan's  Heirs  v.  Logan, 
72  S.  W.  418,  31  Tex.  Civ.  App.  295. 


334  Taxation  in  Texas. 

§  599.     Effect  of  tender. 

A  tender  to  the  purchaser  at  tax  sale,  under  the  third  section 
of  Act  of  June  2,  1873,  concerning  taxes,  the  full  amount  of  the 
purchase  money  paid  for  land  at  such  sale,  within  twelve  months, 
with  one  year's  interest  on  the  same,  at  the  rate  of  twenty-five 
per  cent  per  annum,  worked  ipso  facto  an  immediate  redemption 
of  the  land  by  the  original  owner,  and  left  the  purchaser  at  tax 
sale  without  title.    Burns  v.  Ledbetter,  54  Tex.  374. 

§  600.     Collector  entitled  to  what  fees. 

On  the  redemption  of  land  sold  for  taxes,  and  purchased  by 
the  state,  the  collector  is  entitled  to  retain  only  his  costs  and 
commissions,  without  interest  or  penalty,  though,  in  order  to 
redeem,  the  owner  is  required  to  pay  double  the  total  amount  of 
taxes,  costs,  and  commisisons.  Ramsey  v.  State,  14  S.  W.  793, 
78  Tex.  602. 

§  601.     Property  of  infant,  feme  covert  or  lunatic. 

If  the  real  estate  of  an  infant,  feme  covert,  or  lunatic  be  sold 
under  the  above  provision,  the  same  may  be  redeemed  at  any  time 
within  one  year  after  such  disability  be  removed.  Sayles  R.  S., 
Art.  521. 

§  602.     Judgment  does  not  affect  right  to  redeem. 

A  decree,  in  a  suit  to  enforce  a  tax  on  real  estate,  that  the 
purchaser  at  the  tax  sale  shall  be  placed  in  possession  within 
thirty  days,  and  that  the  defendant  be  debarred  from  asserting 
any  claim  or  title  in  conflict  with  the  lien  foreclosed,  does  not 
deprive  the  owner  of  his  equity  of  redemption,  and  hence  is  not 
erroneous.  Guerguin  v.  City  of  San  Antonio,  50  S.  W.  142,  19 
Tex.  Civ.  App.  98. 

§  603.     After  two  years  title  perfect. 

Where  the  time  for  the  redemption  of  the  land  had  expired,  two 
years,  the  land  sold  for  taxes  under  a  judgment  of  a  court  of 
general  jurisdiction  can  not  be  redeemed  by  a  direct  offer  to 
pay  to  the  purchaser  double  the  amount  of  money  paid  for  the 
land.  After  the  expiration  of  two  years  the  title  to  the  land  ac- 
quired at  the  sale  for  taxes  becomes  perfect.  Kenson  v.  Gage, 
79  S.  W.  607,  34  Tex.  Civ.  App.  547. 


Redemption.  335 

§  604.     Right  of  redemption  before  sale. 

Any  delinquent  taxpayer  whose  lands  have  been  returned  de- 
linquent or  reported  sold  to  the  state  for  taxes  due  thereon,  or 
any  one  having  an  interest  therein,  may  redeem  the  same  at  any 
time  before  his  lands  are  sold  under  the  provisions  of  this  chap- 
ter by  paying  to  the  collector  the  taxes  due  thereon  since  Janu- 
ary 1st,  1885,  with  interest  at  the  rate  of  six  per  cent  per  annum, 
and  all  costs  and  the  penalty  of  ten  per  cent  as  provided  for  in 
Article  5232j ;  provided,  such  penalty  has  accrued  under  the  pro- 
visions and  since  the  passage  and  taking  effect  of  this  chapter. 
Sayles  R.  S.,  Art.  5232m.  ^ 

§  605.     Redemption  after  sale.  » 

Where  lands  are  sold  under  the  provisions  of  this  chapter,  the 
owner  or  any  one  having  an  interest  therein,  shall  have  the  right 
to  redeem  said  land,  or  his  interest  therein,  within  two  years  from 
the  date  of  said  sale  upon  the  payment  of  double  the  amount  paid 
for  the  land.    Sayles  R.  S.,  Art.  5232n. 


CHAPTER  XXXII. 


EXEMPTIONS. 


Sec. 

Sec, 

606. 

Constitutional  provision. 

621. 

607. 

$250.00  furniture  exempt. 

608. 

Farm  products. 

622. 

609. 

Property  exempt. 

610. 

Act  1906. 

611. 

Act   of   30th   Legislature   ex- 

623. 

empting   certain   properties 

624. 

from  taxation. 

612. 

Legislature  may  release  when. 

625. 

613. 

Private    schools — Buildings — 
What  included  in  the  terms. 

614. 

City  council  may  provide  for 

the   exemption  of  property 

626. 

from  taxation. 

615. 

School  property — ^What  is  ex- 
clusive use. 

627. 

616. 

School     house     occupied     by 

family  not  exempt 

628. 

617. 

Land   connected  with  board- 

ing school. 

629. 

618. 

Aid   in   construction  of   rail- 

630. 

road — Sale  of  same. 

63L 

619. 

Leasehold  not  taxable  against 
tenant — "When. 

632. 

620. 

Timber  on   school   land   sold 

not  exempt. 

633. 

Church  publication  not  ex- 
empt. 

Buildings  owned  by  char- 
itable institutions — Renting 
portions  of. 

Public  property. 

Exemption  by  municipality 
void. 

Vendee  under  executory  con- 
tract not  exempt  from  pay- 
ment of  tax,  even  when  sold 
by  county. 

Property  of  municipal  corpo- 
ration. 

Wharf  Co.,  in  which  city 
owns  interest,  property  of 
city. 

Right  of  exemption  passed  by 
sale. 

Leased  State  lands. 

State  lands  under  contract. 

School   land — Title   in   State. 

Property  exempt  from  the 
operation  of  the  Act  of 
1897. 

To  be  construed  in  favor  of 
State. 

§  606.     Constitutional  provision. 

All  occupation  taxes  shall  be  equal  and  uniform  upon  the  same 
class  of  subjects  within  the  limits  of  authority  levying  the  tax; 
but  the  legislatures  may  by  general  laws,  exempt  from  taxation 
public  property  used  for  public  purposes ;  actual  places  of  re- 
ligious worship,  places  for  burial  not  held  for  private  or  cor- 
porate profit;  all  buildings  used  exclusively  and  owned  by  per- 
sons or  associations  of  persons  for  school  purposes  (and  the 
necessary  future  of  all  schools)  and  institutions  of  purely  public 
charity;  and  all  laws  exempting  property  above  mentioned  shall 
be  void.    St.  Const.,  Art.  8,  Sec.  2. 


Exemptions.  337 

§  607.     $250.00  furniture  exempt. 

Provided,  that  two  hundred  and  fifty  dollars'  worth  of  house- 
hold and  kitchen  furniture,  belonging  to  each  family  in  this  state, 
shall  be  exempt  from  taxation.    St.  Const.,  Sec.  1,  Art.  8. 

§  608.     Farm  products. 

Farm  products  in  the  hands  of  the  producer  and  family  sup- 
plies for  home  and  farm  use,  are  exempt  from  all  taxation  until 
otherwise  directed  by  a  two-thirds  vote  of  all  the  members-elect 
to  both  houses  of  the  legislature.    St.  Const.,  Sec.  19,  Art.  8. 

§  609.     Property  exempt. 

The  legislature  may,  general  laws,  exempt  from  taxation  pub- 
lic property  used  for  public  purposes;  actual  places  of  religious 
worship ;  places  of  burial  not  held  for  private  or  corporate  profit ; 
all  buildings  used  exclusively  and  owned  by  persons  or  associa-^ 
tions  of  persons,  school  purposes  (and  the  necessary  future  of 
all  schools),  and  institutions  of  purely  public  charity;  and  all 
laws  exempting  property  from  taxation  other  than  the  property 
above  mentioned  shall  be  void.    St.  Const.,  Sec.  2,  Art.  8. 

The  following  property  shall  be  exempt  from  taxation,  to-wit : 

(1)  Schools  and  Churches. — Public  school  houses  and  houses 
used  exclusively  for  public  worship ;  the  books  and  furniture 
therein  and  the  grounds  attached  to  such  buildings  necessary  for 
the  proper  occupancy,  use  and  enjoyment  of  the  same,  and  not 
leased  or  otherwise  used  with  a  view  to  profit;  all  public  col- 
leges, public  academies,  all  buildings  connected  with  the  same, 
and  all  the  lands  immediately  connected  with  public  institutions  of 
learning,  and  all  endowment  funds  of  institutions  of  learning 
not  used  with  a  view  to  profit;  and  all  buildings  used  ex- 
clusively and  owned  by  persons  or  associations  of  persons,  for 
school  purposes.  This  provision  shall  not  extend  to  leasehold 
estates  of  real  property  held  under  the  authority  of  any  college 
or  university  of  learning. 

(2)  Cemeteries. — All  lands  used  exclusively  for  graveyards, 
or  grounds  for  burying  the  dead,  except  such  as  are  held  by  any 
person,  company  or  corporation  with  a  view  to  profit,  or  for  the 
purpose  of  speculation  in  the  sale  thereof. 

(3)  Public  Property. — All  property,  whether  real  or  personal, 
belonging  exclusively  to  this  state  or  any  political  subdivision 
thereof,  or  the  United  States. 

22 


338  Taxation  in  Texas. 

(4)  County  Buildings. — All  buildings  belonging  to  counties 
used  for  holding  courts,  for  jails  or  for  county  offices,  with  the 
land  belonging  to  and  on  which  such  buildings  are  erected. 

(5)  Poorhouses. — All  lands,  houses  and  other  buildings  be- 
longing to  any  county,  precinct  or  town  used  exclusively  for  the 
support  or  accommodation  of  the  poor.  CSee  No.  6,  further 
down.) 

(6)  All  buildings  belonging  to  institutions  of  purely  public 
charity,  together  with  the  lands  belonging  to  and  occupied  by 
such  institutions,  not  leased  or  otherwise  used  with  a  view  to 
profit,  and  all  moneys  and  credits  appropriated  solely  to  sustain- 
ing such  institutions. 

(7)  Fire  Engines. — All  fire  engines  and  other  implements 
owned  by  towns  and  cities,  used  for  the  extinguishment  of  fires, 
with  the  buildings  used  exclusively  for.  the  safe  keeping  thereof. 

(8)  Market  Houses,  etc. — All  market  houses,  public  squares, 
or  other  public  grounds,  town  or  precinct  houses  or  halls,  used 
exclusively  for  public  purposes  and  all  works,  machinery  or  fix- 
tures belonging  to  any  town  and  used  for  conveying  water  to  such 
town. 

(9)  Public  Libraries. — All  public  libraries  and  personal  prop- 
erty belonging  to  the  same. 

(10)  Furniture. — Household  and  kitchen  furniture,  not  ex- 
ceeding at  their  true  and  full  value  two  hundred  and  fifty  dol- 
lars to  each  family,  in  which  may  be  included  one  sewing  ma- 
chine. 

(11)  Pensions. — All  annual  pensions  granted  by  the  state. 
Const.,  Arts.  81,  2;  Art.  11 ;  Acts  1876,  pp.  275,  5).  R.  S.,  Art. 
5065. 

Institution  means  all  buildings  used  exclusively  and  owned  by 
institutions  of  purely  public  character.  And  a  Masonic  temple, 
the  third  story  of  which  is  used  by  the  Masonic  order,  the  two 
lower  stories  rented,  the  proceeds  of  which  are  appropriated  to 
the  purposes  of  charities,  is  not  exempt  from  taxation.  Morris 
V.  Lone  Star  Chapter  of  Masons,  68  Tex.  698,  5  S.  W.  519. 

This  section  does  not  exempt  property,  it  authorizes  the  legis- 
lature to  do  so.  And  public  property  applies  to  property  owned 
by  the  state  or  one  of  its  municipalities.  Exemption  of  build- 
ings used  for  school  purposes  includes  the  lots  upon  which  they 


Exemptions.  339 

are  placed,  but  does  not  include  land  used  as  a  farm  in  connection 
with  the  buildings.  St.  Edwards  College  v.  Morris,  82  Tex.  1,  17 
S.  W.  512. 

The  power  to  commute  taxes  is  but  an  incident  to  the  power  to 
exempt.  When  the  power  to  exempt  does  not  exist,  the  power 
to  commute  can  not  be  exercised.  The  assumption  on  the  part 
of  a  city  to  exempt  property  is  void.  Austin  v.  Gas  Co.,  69  Tex. 
180,  7  S.  W.  200. 

The  action  of  the  city  of  Houston  in  assessing  a  tax  against 
a  court  house  and  in  attempting  to  bind  the  county  is  violative 
of  this  section.    Harris  Co.  v.  Boyd,  70  Tex.  237,  7  S.  W.  713. 

A  house  owned  by  a  practicing  attorney  in  which  he  lives  with 
his  wife,  she  conducting  a  school  in  it,  is  not  exempt  from  taxa- 
tion. Edmonds  v.  City  of  San  Antonio,  36  S.  W.  495,  14  Tex. 
Civ.  App.  155. 

§  610.     Act  1906. 

Article  5065,  Section  1.  The  following  property  shall  be  ex- 
empt from  taxation,  to-wit: 

1st.  Public  school  houses  and  houses  used  exclusively  for  pub- 
lic worship,  the  books  and  furniture  therein  and  the  grounds  at- 
tached to  each  building  necessary  for  the  proper  occupancy,  use 
and  enjoyment  of  the  same,  and  not  leased  or  otherwise  used  with 
a  view  to  profit.  All  public  colleges,  public  academies,  all  build- 
ings connected  with  the  same  and  all  the  lands  immediately  con- 
nected with  public  institutions  of  learning  and  all  endowment 
funds  of  institutions  of  learning  not  used  with  a  view  to  profit 
and  all  buildings  used  exclusively  and  owned  by  persons  or  asso- 
ciation of  persons  for  school  purposes.  This  provision  shall  not 
extend  to  leasehold  estates  of  real  property  held  under  authority 
of  any  college  or  university  of  learning. 

2d.  All  lands  used  exclusively  for  grave  yards  or  grounds  for 
burying  the  dead,  except  such  as  held  by  any  person,  company  or 
corporation  with  a  view  to  profit  or  for  the  purpose  of  speculation 
in  the  sale  thereof. 

3d.  All  property,  whether  real  or  personal,  belonging  exclu- 
sively to  this  state  or  any  political  subdivision  thereof,  or  the 
United  States. 

4th.  All  buildings  belonging  to  counties  for  holding  courts, 
for  jails  or  for  county  offices  with  the  land  belonging  to  and  on 
which  such  buildings  are  erected. 


340  Taxation  in  Texas. 

5th.  All  lands,  houses  and  other  buildings  belonging  to  any 
county,  precinct  or  town,  used  exclusively  for  the  support  or  ac- 
commodation of  the  poor. 

6th.  All  buildings  belonging  to  institutions  of  purely  public 
charity,  together  with  the  lands  belonging  to  and  occupied  by  such 
institutions  not  leased  or  otherwise  used  with  a  view  to  profit, 
unless  such  rents  and  profits  and  all  moneys  and  credits  are  ap- 
propriated by  such  institutions  solely  to  sustain  such  institutions 
and  for  the  benefit  of  the  sick  and  disabled  members  and  their 
families  and  the  burial  of  the  same,  or  for  the  maintenance  of 
persons  when  unable  to  provide  for  themselves,  whether  such  per- 
sons are  members  of  such  institutions  or  not.  An  institution  of 
purely  public  charity  under  this  act  is  one  which  dispenses  aid  to 
its  members  and  others  in  sickness  or  distress,  or  at  death,  with- 
out regard  to  poverty  or  riches  of  the  recipient,  also  when  the 
funds,  property  and  assets  of  such  institutions  are  pledges  and 
bound  by  its  laws  to  relieve,  aid,  and  administer  in  any  way  to 
the  relief  of  its  members  when  in  want,  sickness  and  distress,  and 
provides  homes  for  its  helpless  and  dependent  members  and  to 
educate  and  maintain  the  orphans  of  its  deceased  members  or 
other  persons. 

7th.  All  fire  engines  and  other  implements  owned  by  towns 
and  cities  used  for  the  extinguishment  of  fires  with  the  buildings 
used  exclusively  for  the  safe  keeping  there. 

8th.  All  market  houses,  public  squares  or  other  public  grounds, 
town  or  precinct  houses  or  halls  used  exclusively  for  public  pur- 
poses, and  all  works,  machinery  or  fixtures  belonging  to  any  town 
and  used  for  conveying  water  to  such  town. 

9th.  All  public  libraries  and  personal  property  belonging  to  the 
same. 

10th.  All  household  and  kitchen  furniture  not  exceeding  at 
their  true  and  full  value  two  hundred  and  fifty  dollars  to  each 
family,  in  which  may  be  included  one  sewing  machine. 

11th.  All  annual  pensions*  granted  by  the  state,  or  United 
States.    Act  1906,  pp.  314,  315. 

The  article  of  the  Revised  Statutes  was  amended  as  above,  for 
the  reason,  as  stated  in  emergency  clause,  because  the  article  is 
not  explicit  enough  to  declare  beyond  a  doubt  as  to  what  prop- 
erty and  funds  are  not  taxable. 


Exemptions.  341 

§611.     Act  of  30th  legislature  exempting  certain  properties 
from  taxation. 
Be  it  enacted  by  the  legislature  of  the  state  of  Texas : 
That  Article  5065  of  the  Revised  Civil  Statutes,  as  amended  by 
Chapter   127,  of  the  General  Laws  of  Texas,  A.  D.   1905,  be 
amended  as  follows : 

Article  5065.  Section  1.  The  following  property  shall  be  ex- 
empt from  taxation,  to-wit: 

(1)  Public  school  houses  and  houses  used  exclusively  for 
public  worship,  the  books  and  furniture  therein  and  the  grounds 
attached  to  such  buildings  necessary  for  the  proper  occupancy, 
use  and  enjoyment  of  the  same,  and  not  leased  or  otherwise  used 
with  a  view  to  profit.  All  public  colleges,  public  academies,  all 
buildings  connected  with  the  same  and  all  the  lands  immediately 
connected  with  public  institutions  of  learning,  and  all  endowment 
funds  of  institutions  of  learning  and  religion  not  used  with  a 
view  to  profit  and  when  the  same  are  invested  in  bonds  or  mort- 
gages, or  in  land  or  other  property  which  has  been,  or  shall  here- 
after be,  bought  in  by  such  institutions  under  foreclosure  sales 
made  to  satisfy  or  protect  such  bonds  or  mortgages — provided 
that  such  exemption  of  such  land  and  property  shall  continue  only 
for  two  years  after  the  purchase  of  the  same  at  such  sale  by  such 
institutions  and  no  longer — and  all  buildings  used  exclusively  and 
owned  by  persons  or  associations  of  persons  for  school  purposes. 
This  provision  shall  not  extend  to  leasehold  estates  of  real  prop- 
erty held  under  authority  of  any  college  or  university  of  learn- 
ing. 

(2)  All  lands  used  exclusively  for  graveyards  or  grounds  for 
burying  the  dead,  except  such  as  are  held  by  any  person,  company 
or  corporation  with  a  view  to  profit,  or  for  the  purpose  of  specu- 
lating in  the  sale  thereof. 

(3)  All  property,  whether  real  or  personal,  belonging  exclu- 
sively to  this  state,  or  any  political  subdivision  thereof,  or  the 
United  States. 

(4)  All  buildings  belonging  to  counties  for  holding  courts, 
for  jails,  or  for  county  officers  with  the  land  belonging  to  and  on 
which  such  buildings  are  erected. 

(5)  All  lands,  houses  and  other  buildings  belonging  to  any 
county,  precinct  or  town,  used  exclusively  for  the  support  or  ac- 
commodation of  the  poor. 


342  Taxation  in  Texas. 

(6)  All  buildings  belonging  to  institutions  of  purely  public 
charity,  together  with  the  lands  belonging  to  and  occupied  by  such 
institutions  not  leased  or  otherwise  used  with  a  view  to  profits, 
unless  such  rents  and  profits  and  all  moneys  and  credits  are  ap- 
propriated by  such  institutions  solely  to  sustain  such  institutions 
and  for  the  benefit  of  the  sick  and  disabled  members  and  their 
families  and  the  burial  of  the  same,  or  for  the  maintenance  of 
persons  when  unable  to  provide  for  themselves,  whether  such  per- 
sons are  members  of  such  institutions  or  not.  An  institution  of 
purely  public  charity  under  this  act  is  one  which  dispenses  its  aid 
to  its  members  and  others  in  sickness  or  distress,  or  at  death, 
without  regard  to  poverty,  or  riches  of  the  recipient,  also  when 
the  funds,  property  and  assets  of  such  institutions  are  placed  and 
bound  by  its  laws  to  relieve,  aid  and  administer  in  any  way  to 
the  relief  of  its  members  when  in  want,  sickness  and  distress  and 
provides  homes  for  its  helpless  and  dependent  members  and  to 
educate  and  maintain  the  orphans  of  its  deceased  members  or  oth- 
er persons. 

(7)  All  fire  engines  and  other  implements  owned  by  towns 
and  cities  used  for  the  extinguishment  of  fires  with  the  buildings 
used  exclusively  for  the  safe-keeping  thereof. 

(8)  All  market  houses,  public  squares  or  other  public  grounds, 
town  or  precinct  houses  or  halls  used  exclusively  for  public  pur- 
poses, and  all  works,  machinery  or  fixtures  belonging  to  any  town 
used  for  conveying  water  to  such  town. 

(9)  All  public  libraries  and  personal  property  belonging  to 
the  same. 

(10)  All  household  and  kitchen  furniture  not  exceeding  at 
their  true  and  full  value  two  hundred  and  fifty  dollars  to  each 
family ;  in  which  may  be  included  one  sewing  machine. 

(11)  All  annual  pensions  granted  by  the  state,  or  United 
States.    Act  30th  Leg.,  p.  302  (Apr.  23d,  1907). 

§  612.     Legislature  may  release  when. 

The  legislature  shall  have  no  power  to  release  inhabitants  of 
or  property  in,  any  county,  city  or  town,  from  the  payment  of 
taxes  levied  for  state  or  county  purposes,  unless  in  case  of  great 
public  calamity  in  any  such  county,  city  or  town,  which  such  re- 
lease may  be  made  by  a  vote  of  two-thirds  of  each  house  of  the 
legislature.     St.  Const.,  Sec.  10,  Art.  8. 


Exemptions.  343 

§  613.  Private  schools — Buildings — What  included  in  the 
terms. 

The  owner  of  land  and  buildings  used  for  private  school  pur- 
poses applied  for  an  injunction  to  prevent  them  from  being  sold 
for  taxes,  claiming  that  under  the  Constitution  of  1876  the  prop- 
erty was  exempt  from  taxation.  Held:  (1)  That  the  Consti- 
tution of  1876  exempts  a  building  used  exclusively  for  school 
purposes ;  the  word  building  is  as  broad  as  the  term  house,  and 
house  has  been  construed  to  mean  both  the  structure  and  the 
land  on  which  it  stands.  Those  who  codified  our  laws,  and  the 
legislature  that  adopted  the  Revised  Statutes,  construed  the  word 
building  to  embrace  the  land  used  in  connection  with  it.  (2) 
That  it  has  been  the  policy  of  the  state  to  encourage  educa- 
tional enterprises  by  exempting  them  frorn  the  burdens  of  gov- 
ernment, and  there  is  nothing  to  warrant  the  inference  that  the 
framers  of  the  constitution  in  the  use  of  the  word  building  in- 
tended to  discriminate  against  private  schools.  (3)  That  ground 
used  for  the  recreation  of  the  students  and  to  supply  the  school 
table  with  vegetables  was  necessary  and  used  for  the  purpose 
and  economical  conduct  of  the  school,  and  as  such  was  exempt. 
Cassiano  v.  Ursiiline  Acadetny,  64  Tex.  673 ;  Trinity  Church  v. 
Boston,  118  Mass.  164;  Pierce  v.  Cambridge,  2  Cush.  611 ;  Mass. 
Gen.  Hospital  v.  Somerville,  101  Mass.  319. 

Buildings  in  which  plaintiff  conducted  a  school,  and  in  which 
he  resided  with  his  family,  are  not  used  exclusively  for  school 
purposes,  and  exempt  from  taxation.  City  of  San  Antonio  v. 
Seeley,  57  S.  W.  688. 

§  614.  City  council  may  provide  for  the  exemption  of  property 
from  taxation. 

The  city  council  may  by  ordinance  provide  for  the  exemp- 
tion from  taxation  of  such  property  as  they  may  deem  just  and 
proper;  provided,  nothing  contained  in  this  chapter  on  taxation 
shall  be  construed  to  prevent  the  city  council  from  imposing, 
levying  and  collecting  special  taxes  and  assessments  for  the 
improvement  of  the  avenues,  streets  and  alleys,  as  hereinafter 
provided.     Sayles  R.  S.,  Art.  497. 

§  615.     School  property — What  is  exclusive  use. 

Under  Rev.  St.  Tex.,  Art.  4673,  Sec.  1,  exempting  from  tax- 
ation "all  buildings  used  exclusively  and  owned  by  persons  or 
associations  of  persons  for  school  purposes,"  it  is  not  necessary 


344  Taxation  in  Texas. 

that  the  property,  in  order  to  be  exempt,  shall  have  been  dedi- 
cated to  school  uses.    It  is  sufficient  if  it  is  in  fact  so  used. 

The  fact  that  the  owners  of  the  school  property  live  on  it  a 
portion  of  each  year,  for  the  reason  that,  as  principal,  matron, 
and  teacher,  their  constant  presence  is  necessary  to  the  conduct 
of  the  business,  does  not  justify  a  finding  that  the  property  is 
not  used  exclusively  for  school  purposes.  Red  v.  Morris,  10  S. 
W.  681,  72  Tex.  554. 

A  building  occupied  by  a  practicing  attorney  as  a  homestead, 
though  his  wife  also  teaches  a  school  therein,  is  not  entitled  to 
exemption  under  Article  5065  of  the  Revised  Statutes  of  1895, 
exempting  all  buildings  used  exclusively  for  school  purposes. 
Edmonds  v.  City  of  San  Antonio,  14  Tex.  Civ.  App.  155. 

Buildings  in  which  plaintiff  conducted  a  school,  and  in  which 
he  resided  with  his  family,  are  not  used  exclusively  for  school 
purposes,  and  exempt  from  taxation.  City  of  San  Antonio  v. 
Seeley,  57  S.  W.  688. 

§  616.     School  house  occupied  by  family  not  exempt. 

The  constitution  exempts  "buildings  used  exclusively  and 
owned  by  persons  or  associations  of  persons  for  school  purposes 
(and  the  necessary  furniture  of  all  schools),  and  institutions  of 
purely  public  charity" ;  and  adds,  "all  laws  exempting  property 
from  taxation,  other  than  the  property  above  mentioned,  shall  be 
void."  Art.  13,  Sec.  2.  The  building  in  question  was  used  by 
the  owner  and  family  not  only  for  school  purposes,  but  also  as 
a  residence.  It  is  not  enough  that  the  main  use  of  the  building 
was  as  a  school,  nor  that  the  owner  and  family  were  all  engaged 
in  the  school  as  teachers  or  pupils.  A  building  used  by  the 
owner  as  a  family  residence  is  not  one  used  exclusively  for 
school  purposes,  and  therefore  is  not  one  exempted  by  the  con- 
stitution. St.  Mary's  College  v.  Crawl,  10  Kan.  451-2 ;  R.  K.  Red 
et  al.  V.  John  D.  Johnson,  53  Tex.  288. 

§617.     Land  connected  with  boarding  school. 

Land  owned  and  used  by  the  proprietor  of  a  private  school  in 
such  a  manner  as  to  enable  him  conveniently  and  cheaply  to  sup- 
ply the  table  of  a  boarding  house  kept  by  him  for  pupils,  though 
contiguous  to  and  immediately  connected  with  land  used  ex- 
clusively for  school  purposes,  is  not  within  Const.  Tex.,  Art.  8, 
Sec.  2,  which  empowers  the  legislature  to  exempt  from  taxation 


Exemptions.  345 

"all  buildings  used  exclusively,  and  owned  by  persons  or  asso- 
ciations of  persons,  for  school  purposes."  St.  Edwards'  Col- 
lege V.  Morris,  \7  S.  W.  512,  82  Tex.  1. 

§  618.     Aid  in  construction  of  railroad — Sale  of  same. 

Act  March  10,  1875  (Sp.  Laws  1875,  p.  69,  Chap.  49),  which, 
in  compromise  of  a  claim  of  a  railroad  company  against  the 
state  for  bonds  to  be  given  in  aid  of  the  construction  of  the  rail- 
road, exempts  from  state  taxes  for  twenty-five  years  all  prop- 
erty which  may  be  owned  by  it  or  its  successors  in  virtue  of  the 
act  incorporating  it,  is  constitutional. 

Such  exemption  is  not  forfeited  by  sale  of  the  railroad. 

Nor  is  it  forfeited  by  failure  of  the  company  to  construct  and 
complete  its  road  between  the  places  and  within  the  time  required 
by  its  charter.    State  v.  Colorado  Bridge  Co.,  75  S.  W.  818. 

§  619.     Leasehold  not  taxable  against  tenant  when. 

Rev.  St.  Tex.,  Art.  4691,  provides  that  "property  held  under 
a  lease  for  a  term  of  three  years  or  more,"  belonging  to  the 
state,  or  exempt  by  law  from  taxation  in  the  owner's  hands,  shall 
be  considered,  for  all  purpose  of  taxation,  as  the  property  of  the 
lessee.  Held,  that  school  lands,  leased  from  the  state  for  terms 
of  six  and  ten  years,  under  Act  Tex.  April  12,  1883  (Gen.  Laws, 
18th  Leg.,  1885),  whereby  the  state  reserved  the  right  to  termi- 
nate the  lease  at  any  time  by  selling  the  lands,  are  not  taxable 
against  the  tenant,  as  the  contract  under  which  he  holds  can  not 
be  considered  a  "lease  for  a  term  of  three  years  or  more."  Tram- 
mell  V.  Faught,  12  S.  W.  317,  74  Tex.  557. 

§  620.     Timber  on  school  land  sold  not  exempt. 

Const.,  Art.  11,  Sec.  9,  exempts  from  taxation  all  property  of 
counties,  etc.,  held  only  for  public  purposes.  Art.  7,  Sec.  6,  pro- 
vides that  all  lands  granted  to  the  several  counties  for  educa- 
tional purposes  are  the  property  of  such  counties,  and  shall  be 
held  by  them  in  trust  for  the  public  schools.  Acts  1905,  p.  72, 
Chap.  52,  provides  that  timber  held  by  persons,  purchasing  from 
the  state  under  the  various  laws  for  that  purpose,  shall  be  taxed. 
Held,  that  timber  on  county  school  lands  was  exempt  from  tax- 
ation under  Section  9,  so  long  as  it  was  owned  by  the  county, 
but,  when  sold,  was  not  exempt  from  taxes  levied  after  the  sale. 


346  Taxation  in  Texas. 

though  not  served  from  the  land;  Act  1905  applying  to  county 
lands  as  well  as  state  lands.  Montgomery  v.  Peach  River  Lum- 
ber Co.,  117  S.W.  1061. 

§  621.     Church  publication  not  exempt. 

Under  Const.,  Art.  8,  Sec.  2,  providing  that  the  legislature 
may  exempt  institutions  of  purely  public  charity  from  taxation, 
only  real  estate  owned  and  used  exclusively  by  such  institutions 
may  be  exempted,  so  that  books  and  periodicals  published  and 
handled  by  a  church  publishing  house,  the  funds  from'  the  sale 
of  which  are  to  be  used  for  the  benefit  of  supernumerary  and 
worn-out  preachers,  are  taxable.  Barbee  v.  City  of  Dallas,  64 
S.  W.  1018,  26  Tex.  Civ.  App.  571. 

§  622.     Buildings  owned  by  charitable  institutions — Renting 
portions  of. 

The  provision  in  Const.  Tex.,  Art.  8,  Sec.  2,  that  the  legisla- 
ture may  exempt  from  taxation,  among  others,  the  buildings  of 
"institutions  of  purely  public  charity,"  means  such  buildings 
only  as  are  used  exclusively  and  owned  by  such  institutions. 
Hence,  a  hall  owned  by  a  chapter  of  Royal  Arch  Masons,  certain 
portions  of  which  are  rented  to  persons  and  for  purposes  uncon- 
nected with  the  objects  of  the  society,  and  the  proceeds  used  by 
the  society  in  furtherance  of  its  charitable  objects,  is  not  a  build- 
ing used  exclusively  by  it,  and  is  subject  to  taxation.  Morris  v. 
Lone  Star  Chapter  No.  6,  Royal  Arch  Masons,  5  S.  W.  519,  68 
Tex.  698. 

§  623.     Public  property. 

Under  Const.  Tex.,  Art.  11,  Sec.  9,  providing  that  "the  prop- 
erty of  counties,  cities,  and  towns,  held  only  for  public  purposes, 
*  *  *  shall  be  exempt  from  forced  sale,  and  from  taxation," 
an  assessment  against  a  county,  under  a  city  ordinance,  for  im- 
provements on  a  street  on  which  the  county  courthouse  and  lots 
abut,  is  void.    Harris  County  v.  Boyd,  7  S.  W.  713,  70  Tex.  237. 

§  624.     Exemption  by  municipality  void. 

A  contract  made  between  the  city  of  Austin  and  the  Austin 
Gas-Light  &  Coal  Company,  exempting  the  property  of  the  com- 
pany from  municipal  taxation,  is  ultra  vires  and  void,  being  in  vio- 
lation of  Const.  Tex.,  1869,  Art.  12,  Sec.  19,  which  provides  that 
taxes  shall  be  equal  and  uniform  throughout  the  state,  and  that 


Exemptions.  "  347 

all  property  shall  be  taxed  in  proportion  to  its  value,  except  where 
the  legislature  shall  by  a  two-thirds  vote  exempt  property  from 
taxation.  City  of  Austin  v.  Gas-Light  &  Coal  Co.,  7  S.  W.  200, 
69  Tex.  180;  Altgelt  v.  City  of  San  Antonio,  \7  S.  W.  75,  81  Tex. 
436. 

§  625.     Vendee  under  executory  contract  not  exempt  from  pay- 
ment of  tax,  even  when  sold  by  county. 

That  our  tax  laws  should  be  construed  as  they  long  have  been, 
to  require  the  vendee  holding  land  under  an  executory  contract 
of  sale  to  pay  the  taxes  assessed  against  such  lands,  we  entertain 
no  doubt.  Lands  so  held  are  subject  to  execution  as  the  prop- 
erty of  the  vendee,  and  the  title  of  such  vendee  will  support  an  ac- 
tion of  trespass  to  try  title.  The  fact  that  county  is  the  vendor 
ought  not  to  change  the  legal  status  of  such  vendee.  True,  it 
has  been  held  that  county  school  lands,  so  long  as  they  remain 
the  property  of  the  county,  are  exempt  from  taxation,  even  in 
the  hands  of  a  lessee  {Dougherty  v.  Thompson,  71  Tex.  192,  9 
S.  W.  99)  ;  but  after  the  lands  are  sold  by  the  county  they  be- 
come the  property  of  a  vendee  for  purposes  of  taxation,  as  well 
as  of  execution,  even  though  a  sale  be  on  a  credit,  and  the  con- 
tract executory.  It  would  certainly  be  unreasonable  to  treat  a 
county  selling  its  school  lands  on  a  credit  as  owner  both  of  the 
notes  or  obligation  taken  for  the  purchase  price  and  of  the  land. 
True,  the  county  is  not  entirely  divested  of  title  to  the  lands  until 
they  are  finally  paid  for,  but  until  a  forfeiture  or  rescission  takes 
place  on  account  of  the  default  of  the  purchaser  the  purchaser  is 
to  be  regarded  as  the  owner,  and  the  lands  may  be  sold  for 
taxes  as  his  property.  Taber  v.  State,  85  S.  W.  837,  38  Tex. 
Civ.  App.  235. 

§  626.     Property  of  municipal  corporation. 

In  the  absence  of  any  law  expressly  providing  otherwise,  such 
property  as  a  municipal  corporation  owns  and  uses  for  a  public 
purpose  is  held  not  to  be  affected  by  general  laws  regulating  tax- 
ation. Cooley  on  Taxation,  130,  131 ;  Dillon  on  Municipal  Cor- 
porations, 773,  774,  and  cases  cited  in  the  notes.  Galveston  Wharf 
Co.  V.  Galveston,  63  Tex.  23. 


348  Taxation  in  Texas. 

§  627.     Wharf  company  in  which  city  owns  interest  property 
of  city. 

The  decree  of  the  district  court  of  Brazoria  county,  rendered 
April  1,  1869,  in  the  case  of  The  City  of  Gdveston  v.  The  Gal- 
veston Wharf  Company,  consoHdating  the  interests  of  the  re- 
spective parties  thereto,  vested  the  undivided  one-third  of  the 
property  of  the  consoHdated  wharf  company  in  the  city  of  Gal- 
veston, w^ith  the  exception  of  certain  property  specified  in  the  de- 
cree. Said  one-third  interest  was  represented  by  one-third  of 
the  stock  of  the  consolidated  company. 

The  effect  of  said  decree  was  to  vest  in  the  city  of  Galveston, 
not  only  the  right  to  receive  one-third  on  the  dividends  accru- 
ing to  the  wharf  company,  but  the  further  right  to  one-third  of 
the  entire  property  of  the  company  as  consolidated;  it  being, 
however,  subject  to  the  control  of  the  Galveston  Wharf  Com- 
pany for  the  uses  and  purposes  for  which  the  consolidation  was 
made. 

Section  1,  Art.  8,  of  the  state  Constitution,  which  enumerates 
certain  property  which  is  exempt  from  taxation,  cannot  be  con- 
strued to  subject  all  property  not  specified  to  taxation;  that  sec- 
tion simply  indicates  the  character  of  things  and  the  uses  to 
which  they  must  be  appropriated  in  order  to  entitle  them  to 
the  exemption. 

The  city  of  Galveston  owns  such  a  beneficial  interest  in  the 
property  of  the  Galveston  Wharf  Company,  and  of  the  dividends 
to  arise  from  its  use,  as  renders  it  improper  for  the  city  to  im- 
pose taxes  which  would  ordinarily  deprive  the  city  of  a  part 
of  the  dividends  of  the  company  which  it  is  entitled  to  receive. 

The  two-thirds  interest  owned  by  the  wharf  company  is  sub- 
ject to  state  and  municipal  taxation.  The  Galveston  Wharf  Co. 
V.  The  City  of  Galveston,  63  Tex.  14. 

§  628.     Right  of  exemption  passed  by  sale. 

Act  of  1875. — The  "property"  or  "franchise"  of  a  railroad, 
exempted  from  taxation  by  a  legislative  act,  was  sold  under  a 
mortgage.    Held : 

(1)  That  the  right  of  exemption  from  taxation  probably  did 
not  pass  by  the  sale  as  a  thing  sold  and  per  force  of  the  sale. 

(2)  The  Act  of  March  10,  1875,  was  a  declaration  having  the 
force  of  a  law,  as  well  as  a  contract,  by  which  the  right  to  the 


Exemptions.  *  349 

exemption  was  secured  to  persons  who  might  succeed  in  any 
manner  to  the  corporate  rights  and  ownership  of  the  property 
exempted  from  taxation  by  the  act. 

(3)  The  exemption  passed  by  force  of  the  law,  while  title  to 
the  thing  exempted  was  subject  to  the  rules  regulating  the  trans- 
fer of  property. 

(4)  The  word  "successors"  was  evidently  used  to  designate 
such  persons  as  might,  in  a  lawful  manner,  acquire  the  propri- 
etorship of  the  corporate  rights  and  property  through  which  they 
were  to  be  exercised,  while  "assigns"  was  probably  used  to  des- 
ignate parties  who  might  acquire  the  land  certificates  before  lo- 
cation, or  the  lands  afterwards.  /.  &  G.  N.  Ry.  Co.  v.  Smith 
County,  65  Tex.  21. 

§  629.     Leased  state  lands. 

Under  Rev.  St.  Tex.,  Art.  4691,  providing  that  "property  held 
under  lease  for  a  term  of  three  years  or  more,  or  held  under  a 
contract  for  the  purchase  thereof,  belonging  to  this  state,  or  that 
is  exempt  by  law  from  taxation  in  the  hands  of  the  owner  there- 
of, shall  be  considered,  for  all  purposes  of  taxation,  as  the  prop- 
erty of  the  person  so  holding  the  same,  except  as  otherwise  pro- 
vided by  law,"  school  lands  leased  for  a  term  of  ten  years  can 
not  be  assessed  against  the  lessee  at  the  value  of  the  land,  but 
only  at  the  value  of  the  leasehold,  which  is  determined  by  Art. 
4692  to  be  such  price  as  it  would  bring  at  fair  voluntary  sale. 

Const.  Tex.,  Art.  11,  Sec.  9,  exempting  from  taxation  "prop- 
erty of  counties,  cities,  and  towns  owned  and  held  only  for  public 
purposes,  applies  to  county  school  lands  when  leased  to  raise  an 
available  school  fund,  under  the  provisions  of  Art.  7,  Sec.  6,  pro- 
viding that  each  county  may  sell  or  dispose  of  such  lands  in  whole 
or  in  part ;  that  said  lands,  or  the  proceeds  thereof  when  sold, 
shall  be  held  as  a  trust  for  the  benefit  of  the  public  schools ;  and 
that  the  interest  and  other  revenue,  except  the  principal,  shall 
be  available  fund."  Dougherty  v.  Thompson,  9  S.  W.  99,  71  Tex. 
192;  State  v.  Taylor,  12  S.  W.  176,  72  Tex.  297;  Dazns  v.  Bur- 
nett, 13  S.  W.  613,  77  Tex.  3. 

§  630.     State  lands  under  contract. 

Land  set  apart  by  the  state  for  the  contractor,  as  payment  for 
the  construction  of  a  new  capitol  of  Texas,  to  be  conveyed  to 
him  from  time  to  time  when  earned  in  the  progress  of  the  work, 


350  Taxation  in  Texas. 

is  not  subject  to  taxation  under  Rev.  St.  Tex.,  Art.  4691,  as  land 
"held  under  a  contract  for  the  purchase  thereof,  belonging  to  this 
state." 

Nor  did  a  lease  executed  after  the  original  contract,  under 
which  the  contractor  took  possession  of  all  the  land  so  set  apart 
as  a  stipulated  rent,  until  the  title  should  vest  in  him  by  the  com- 
pletion of  the  building,  give  him  such  a  holding  as  to  make  the 
land  taxable.    Taylor  v.  Robinson,  10  S.  W.  245,  72  Tex.  364. 

§  631.     School  lands — Title  in  state. 

Where  school  land  was  purchased  and  the  first  payment  made 
under  the  act  of  July  8,  1879,  as  amended  in  1881,  it  is  subject  to 
taxation  under  Id.,  Sec.  16,  providing  that  "said  land  shall  be 
subject  to  taxation  from  the  date  of  the  first  payment  into  the 
treasury  of  the  state,"  notwithstanding  full  payment  has  not  been 
made  or  patent  issued,  and  the  title  is  still  in  the  state.  Hindes  v. 
State,  67  S.  W.  467,  68  Tex.  Civ.  App.  521. 

§  632.     Property  exempt  from  the  operation  of  the  act  of  1897. 

Real  estate  which  may  have  been  rendered  for  taxes  and  paid 
under  erroneous  description  given  in  assessment  rolls,  or  lands 
that  may  have  been  doubly  assessed  and  taxes  paid  on  one  assess- 
ment, or  lands  which  may  have  been  assessed  and  taxes  paid 
thereon  in  a  county  other  than  the  one  in  which  they  are  located, 
or  lands  which  may  have  been  sold  to  the  state  and  upon  which 
taxes  have  been  paid  and  through  error  not  credited  in  the  as- 
sessment rolls,  shall  not  be  deemed  subject  to  the  provisions  of 
this  chapter. 

When  called  upon  the  commissioner  of  the  general  land  office 
shall  furnish  the  county  judge  of  any  county  compiling  its  own 
delinquent  tax  record,  officially,  with  such  information  as  may 
be  necessary  to  enable  him  to  determine  the  validity  or  locality 
of  such  surveys  and  grants  as  have  not  been  shown  by  the  printed 
abstracts  of  the  land  office.  Act  1897,  p.  137,  Sec.  12.  R.  S., 
Art.  52321. 

§  633.     To  be  construed  in  favor  of  state. 

When  the  construction  of  a  law  is  doubtful,  which,  it  is  claimed, 
exempts  one  from  some  liability  to  the  state,  the  doubt  will  be 
resolved  in  favor  of  the  state  and  against  the  exemption.  Morris 
V.  Royal  Arch  Masons,  68  Tex.  698. 


CHAPTER  XXXIII. 

HOMESTEAD. 

Sec.  Sec. 

634.  Liable     only     for    taxes     as-      639.  Sale  of. 

sessed  against  it.  640.  Wife  need  not  be  made  party. 

635.  Liable    for    taxes,   costs    and      641.  May  be  sold  separately. 

interest  against  it.  642.  Redemption. 

636.  Not    liable    for    special    im-       643.  Executions    and    administra- 

provement  assessments.  tions. 

637.  Courts  costs,  644.  Proceeds  from  fire  insurance. 

638.  Void     tax     sale — Repurchase      645.  Judgment     against     husband 

by  owner — Vendee's  lien.  good. 

§  634.     Liable  only  for  taxes  assessed  against  it. 

Our  constitution  protects  the  homestead  from  forced  sale  for 
taxes,  except  such  as  may  be  assessed  against  it.  St.  Const., 
Sec.  50,  Art.  16;  Lufkin  v.  Galveston,  58  Tex.  545;  Wright  v. 
Strauh,  64  Tex.  66 ;  Hayes  v.  Taylor,  17  Tex.  Civ.  App.  449. 

No  real  estate  set  apart,  used  or  designated  as  a  homestead 
shall  be  sold  for  taxes  other  than  the  taxes  due  on  such  home- 
stead.   R.  S.,  Art.  5183. 

(1)  The  homestead  is  not  protected  by  the  constitution  from 
forced  sale  for  lawful  taxes  that  may  be  due  on  it.  While  that 
instrument  throws  the  most  ample  protection  around  the  home- 
stead, it  clearly  intends  that  in  return  it  shall  bear  its  just  pro- 
portionate share  of  the  burdens  imposed  by  government  and  it  is 
liable  as  other  real  property  to  all  taxes,  state,  county  or  munici- 
pal, that  are  justly  and  lawfully  laid  on  the  property  of  the  cit- 
izen.   Lufkin  V.  Galveston,  58  Tex.  545. 

(2)  The  homestead  is  exempt  from  forced  sale  for  taxes  ex- 
cept such  as  are  assessed  against  the  homestead  itself  and  a  sale 
of  it  for  other  taxes  as  well  as  those  assessed  against  it  is  in- 
hibited by  the  constitution.     Wright  v.  Straub,  64  Tex.  64. 

§  635.     Liable  for  taxes,  costs  and  interest  against  it. 

The  lot  in  controversy  is  the  homestead  of  appellee,  and  only 
liable  under  the  constitution  for  the  taxes,  costs,  and  interest  as- 
sessed against  it,  and  it  can  not  be  made  liable  for  the  taxes,  costs, 
interest,  or  penalty  that  may  be  due  by  appellee  on  other  prop- 


352  Taxation  in  Texas. 

erty  owned  by  him.  But  we  are  of  the  opinion  that  the  language 
of  the  constitution,  making  the  homestead  Hable  for  taxes  due 
upon  it,  includes  interest,  which  is  an  incident  of  the  tax  debt, 
and  that  it  is  also  liable  for  the  costs  and  expenses  incurred  in 
assessing  and  collecting  the  taxes  due  upon  such  homestead,  and 
the  cost  of  suit,  if  any,  that  might  be  incurred  in  foreclosing  a 
tax  lien  upon  such  property;  but  it  could  not  be  charged  with 
the  costs  and  expenses  of  assessing  and  collecting  taxes  due  upon 
other  property,  or  for  costs  incurred  in  obtaining  judgment  for 
such  taxes.  Nor  is  it  liable  for  the  interest  due  upon  other  taxes, 
nor  for  the  penalty  prescribed  by  the  Act  of  1897,  either  for  the 
taxes  due  upon  such  property,  or  for  any  other  taxes  due  upon 
property  by  the  appellee. 

The  principle  decided  in  San  Antonio  v.  Berry,  92  Tex.  319, 
48  S.  W,  496,  and  Bean  v.  City  of  Broumzvood  (Tex.  Civ.  App.), 
43  S.  W.  1036,  in  effect  recognizes  the  liability  of  the  homestead 
for  the  costs  incurred  in  collecting  the  taxes  due  upon  it,  and  for 
the  interest  due  upon  such  sum.  In  keeping  with  the  above  views, 
we  are  of  the  opinion  that  the  court  erred  in  not  foreclosing  the 
lien  upon  the  property  in  question  for  the  taxes  due  upon  that 
property,  as  well  as  the  costs  incurred  in  an  effort  to  collect  same 
and  foreclose  the  lien  in  this  case,  and  for  the  costs  permitted 
and  authorized  by  law  in  assessing  the  property,  etc.,  and  for 
the  interest  due  for  the  years  1897,  1898,  1899,  and  1901.  City 
of  Marlin  v.  Green,  78  S.  W.  705,  34  Tex.  Civ.  App.  421 ;  Toep- 
perwein  v.  City  of  San  Antonio,  124  S.  W.  699. 

§  636.     Not  liable  for  special  improvement  assessments. 

A  special  assessment  against  a  homestead  for  street  paving  is 
not  a  tax  for  which  the  home  is  liable.  Lovenherg  v.  City  of  Gal- 
veston, 42  S.  W.  1024,  17  Tex.  Civ.  App.  162. 

A  special  assessment  against  the  homestead  for  sidewalk  is  not 
a  tax  within  the  meaning  of  the  constitution.  Higgins  v.  Bor- 
dages,  88  Tex.  460,  31  S.  W.  52,  803. 

§  637.     Court  costs. 

The  costs  of  a  tax  foreclosure  suit  are  a  lien  on  the  home- 
stead so  foreclosed.  Berry  v.  City  of  San  Antonio,  46  S.  W. 
273,  92  Tex.  319;  Bean  v.  City  of  Brozmwood,  43  S.  W.  1036; 
City  of  San  Antonio  v.  Berry,  48  S.  W.  496,  92  Tex.  319. 


Homestead.  353 

§638.  Void  tax  sale — Repurchase  by  owner — Vendor's  lien. 
The  debt  for  purchase  money  excepted  by  the  constitution  can 
be  none  other  than  that  created  in  acquiring  some  sort  of  title 
to  the  homestead,  and  hence  can  not  arise  from  a  contract  made 
after  such  title  is  fully  vested  and  the  homestead  acquired.  Cer- 
tainly the  conveyance  of  a  void  tax  title  to  the  appellee,  while  in 
the  full  possession  and  enjoyment  of  his  homestead,  could  not 
have  strengthened  his  title  thereto.  Indeed,  the  tax  sale  pro- 
ceeded upon  the  assumption  that  the  title  to  the  homestead  was 
already  perfect  in  appellee.  It  follows  therefore  that  the  owner 
of  a  homestead  sold  for  taxes  at  a  sale  which  is  void  because  other 
taxes  than  those  on  the  homestead  were  included  in  the  sale,  does 
not,  by  taking  fromi  the  purchaser  at  such  sale,  a  conveyance  of 
the  homestead  expressly  retaining  a  vendor's  lien  to  secure  pay- 
ment of  a  note  given  as  the  purchase  price,  render  the  home- 
stead subject  to  sale  on  foreclosure  of  the  vendor's  lien.  Hayes 
V.  Taylor,  17  T6x.  Civ.  App.  449.  <        , 

§  639.     Sale  of. 

Where  the  amount  of  taxes  for  which  a  homestead  is  alleged 
to  have  been  bought  is  greater  than  the  amount  allowed  by  the 
constitution,  the  sale  is  void,    Hayes  v.  Taylor,  43  S.  W.  314. 

§  640.     Wife  need  not  be  made  party. 

The  wife  need  not  be  made  a  party  in  foreclosing  a  tax  lien 
on  a  homestead.  Bean  v.  City  of  Brotvnwood,  43  S.  W.  1036; 
Berry  v.  City  of  San  Antonio,  46  S.  W.  273,  92  Tex.  319;  Jer- 
gens  V.  Schiele,  61  Tex.  255 ;  City  of  San  Antonio  v.  Berry,  48  S. 
W.  496,  92  Tex.  319;  Collins  v.  Ferguson,  56  S.  W.  225,  22  Tex. 
Civ.  App.  552;  Honssels  v.  Taylor,  58  S.  W.  i91,  24  Tex.  Civ. 
App.  72. 

§  641.     May  be  sold  separately. 

When  the  same  judgment  forecloses  tax  liens  against  a  home- 
stead and  other  property,  it  is  proper  to  have  separate  orders  of 
sale  issued  at  the  same  time,  that  the  homestead  may  be  sold 
separately.    Bean  v.  City  of  Brownwood,  43  S.  W.  1036. 

§  642.     Redemption. 

Where,  after  the  sale  of  a  designated  homestead  for  delin- 
quent taxes,  the  owners  filed  suit  against  the  purchaser  to  set 
aside  the  sale  and  conveyance  to  him,  and  the  suit  was  compro- 
23 


354  Taxation  in  Texas. 

mised  within  the  two  years  from  the  date  of  the  tax  sale  allowed 
for  redemption,  it  being  agreed  that  a  judgment  should  be  en- 
tered in  favor  of  the  purchaser,  he  at  the  time  executing  a  con- 
veyance back  to  the  owners  for  a  consideration  small  in  com- 
parison to  the  then  value  of  the  property,  and  the  owners  re- 
mained in  possession  during  all  the  time  from  the  date  of  the 
designation  of  the  homestead  until  the  husband's  death,  some  four 
years  subsequent  to  the  time  of  the  compromise,  the  transaction 
was  a  redemption. 

Where,  after  a  sale  of  a  homestead  for  delinquent  taxes,  the 
owners  redeemed  the  hoitiestead,  designation  was  not  to  be  de- 
termined by  the  value  of  the  property  at  the  time  of  the  convey- 
ance back  of  the  tax  purchaser,  but  the  original  designation  would 
control.    Bente  v.  Sullivan,  115  S.  W.  350. 

§  643.     Executions  and  administrations. 

A  judgment  for  a  city  for  taxes  against  a  homestead,  pre- 
serving the  right  of  redemption  in  favor  of  the  owner  and  con- 
taining a  recital  limiting  the  right  of  the  purchaser  thereunder 
to  possession  for  two  years  after  the  date  of  the  sale,  during 
which  time  the  owner  did  redeem,  was  binding  upon  the  owner's 
executor  whether  or  not  there  was  any  statutory  authority  to  re- 
deem, and  precluded  him  from  asserting  that  a  reconveyance 
to  the  owner  by  the  purchaser  at  the  tax  sale  made  a  new  desig- 
nation of  homestead  necessary,  as  the  rights  of  an  executor  are 
no  greater  than  those  of  his  testator ;  a  judgment  rendered  against 
the  testator  in  all  its  parts,  especially  those  favorable  to  his  in- 
terests, being  binding  upon  his  executor.  Bente  v.  Sullivan,  115 
S.  W.  350. 

§  644.     Proceeds  from  fire  insurance. 

The  proceeds  of  a  fire  insurance  policy  issued  on  a  building 
which  is  a  part  of  a  homestead,  as  well  as  the  proceeds  of  the 
sale,  of  a  homestead,  cire  exempt  from  the  payment  of  a  husband's 
debt  other  than  for  such  debts  as  are  owing  for  purchase  money 
of  the  homestead  or  for  taxes  thereon.  Alvord  Nat.  Bank  v. 
Ferguson,  126  S.  W.  622. 

§  645.     Judgment  against  husband  good. 

A  judgment  against  the  husband  alone  touching  community 
property  is  conclusive  as  to  the  title  to  the  property  upon  both 
husband  and  wife.    Nor  is  the  wife  a  necessary  party  to  any  suit 


Homestead.  355 

in  which  the  homestead  is  not  available  as  a  defense,  merely  on 
account  of  the  fact  that  the  family  home  is  established  on  the 
property,  unless  she  has  a  defense  growing  out  of  her  homestead 
rights  which  would  defeat  the  action,  in  which  event  she  is  a 
necessary  party,    Jergens  v.  Schiele,  61  Tex.  255. 

By  the  decisions  of  this  state  the  homestead  is  not  protected 
from  forced  sale  for  lawful  taxes  that  may  be  due  on  it,  and,  from 
the  above,  the  wife's  plea  of  a  homestead  would  avail  nothing  as 
a  defense  and  she  is  therefore  not  a  necessary  party  to  a  suit  for 
taxes  which  are  assessed  in  the  name  of  her  husband,  though  it 
may  be  taxes  on  the  homestead. 


CHAPTER  XXXIV. 

PERSONAL  PROPERTY. 

Sec.  Sec. 

646.  Personal  estate  includes  what.       655.  Assessment  of  taxes  of  Tele- 

647.  Credits     and     securities — Na-  graph  Co. 

tional  bank  stock — ^^Non-resi-  656.  Corn  and  cotton — Division  of 
dents.  tax. 

648.  Bonds  and  securities.  657.  Cattle  ranging  in  two   coun- 

649.  Duty  of  assessor  and  collector  ties. 

of  cities  and  towns  to  make       658.  Taxes     on     indebtedness     of 
lists  of  personal  property.  non-resident. 

650.  Separate  value  of  each  piece       659.  Fish — Act    •29th    Legislature, 

not  required  in  assessment.  page  128. 

651.  Assessment — Description      of      660.  Vessels — Taxable  where  own- 

property,  er  resides. 

652.  Cattle  taxed  in  county  where      661.  Vendor's  lien  notes  owned  by 

situated.  non-residents,     but     within 

653.  Non-residence   of  owner.  State. 

654.  Sale  of  personal  property. 

§  646.     Personal  estate  includes  what. 

The  term  personal  estate  or  property,  as  used  in  this  title,  shall 
be  construed  to  include  all  household  furniture,  money,  goods,, 
capital,  chattels,  public  stocks  and  stocks  of  corporations,  moneyed 
or  otherwise,  and  generally  all  property  which  is  not  real. 
Sayles  R.  S.,  Art.  496. 

Personal  property  shall,  for  the  purposes  of  taxation,  be  con- 
strued to  include  all  chattels  and  effects,  and  all  moneys,  credits, 
bonds  and  other  evidences  of  debt  owned  by  citizens  of  the  state, 
whether  the  same  be  in  or  out  of  the  state;  all  ships,  boats  and 
vessels  belonging  to  inhabitants  of  this  state,  if  registered  in  this 
state,  whether  at  home  or  abroad,  and  all  capital  invested  there- 
in ;  all  moneys  at  interest,  either  within  or  without  this  state, 
due  the  person,  to  be  taxed  over  and  above  what  he  pays  inter- 
est for ;  and  all  other  debts  due  such  persons  over  and  above  their 
indebtedness ;  all  public  stock  and  securities ;  all  stock  in  turn- 
pikes, railroads,  canals  and  other  corporations  (except  national 
banks)  out  of  the  state,  owned  by  inhabitants  of  this  state ;  all 
personal  estate  of  moneyed  corporations,  whether  the  owners 


Personal  Property.  357 

thereof  reside  in  or  out  of  this  state,  and  the  income  of  any  an- 
nuity, unless  the  capital  of  such  annuity  be  taxed  within  this 
state;  all  shares  in  any  bank  organized  or  that  may  be  organ- 
ized under  the  law  of  the  United  States ;  all  improvements  made 
by  persons  upon  lands  held  by  them,  the  title  to  which  is  still 
vested  in  the  state  of  Texas  or  in  any  railroad  company,  or  which 
have  been  exempted  from  taxation  for  the  benefit  of  any  railroad 
company  or  any  other  corporations,  or  any  other  corporation 
whose  property  is  not  subject  to  the  same  mode  and  rule  of  tax- 
ation as  other  property.  (Acts  1879,  Chap.  40,  p.  39.  R.  S.,  Art. 
5063.) 

The  term  "personal  .property,"  when  employed  in  a  tax  law, 
includes  bonds,  notes,  credits,  and  choses  in  action.  Jesse  French 
Piano  Co.  v.  City  of  Dallas,  61  S.  W.  942,  2  Tex.  Ct.  R.  261 ;  Buck 
V.  Miller,  45  N.  E.  647,  37  L.  R.  A.  388,  62  Am.  St.  436,  22  Amer. 
and  Eng.  Ency.  of  Law,  747 ;  State  v.  Fidelity  &  Deposit  Co.,  80 
S.  W.  553,  35  Tex.  Civ.  App.  214. 

§  647.     Credits  and  securities — National  bank  stock — Non-resi- 
dents. 

Non-residents  loaning  money  in  the  state  are  not  subject 
to  taxation  under  Rev.  St.,  Art.  5063,  declaring  that  "personal 
property  shall  for  the  purposes  of  taxation  be  construed  to  in- 
clude all  credits,  bonds  and  other  evidences  of  debt  owned  by 
citizens  of  the  state,  whether  the  same  be  in  or  out  of  the  state 
*  *  *,  all  moneys  at  interest,  either  within  or  without  this  state, 
due  the  person  to  be  taxed,  over  and  above  what  he  pays  interest 
for,  and  all  other  debts  due  such  persons  over  and  above  their 
indebtedness." 

The  term  "moneyed  capital  in  the  hands  of  individual 
citizens  of  such  state"  used  in  Rev.  St.  U.  S.,  Sec.  5219,  provid- 
ing that  the  taxation  of  the  national  banks  "shall  not  be  at  a 
greater  rate  than  is  assessed  on  other  moneyed  capital  in  the 
hands  of  individual  citizens  of  such  state,"  and  similar  language 
in  Rev.  St.  Tex.,  Art.  5080,  providing  that  "nothing  herein  shall 
be  so  construed  as  to  tax  national  or  state  banks  or  the  share- 
holders theredf  at  a  greater  rate  than  is  assessed  against  other 
moneyed  capital  in  the  hands  of  the  individuals"  refer  to  capital 
owned  by  natural  persons,  and  not  to  capital  belonging  to  cor- 
porations. 


358  Taxation  in  Texas. 

§  648.     Bonds  and  securities. 

Municipal  bonds  and  securities,  when  properly  executed,  as- 
sume a  concrete  form,  which  gives  to  them  a  tangible  status.  They 
are  more  than  mere  evidences  of  debt.  They  may  be  stolen  or 
converted,  and  the  wrongdoer  held  responsible  for  their  value. 
They  constitute  property  within  the  meaning  of  the  law,  and  their 
concrete  form  and  fixed  value  as  municipal  securities  give  them 
a  tangible  existence.  It  is  well  settled  that  bank  bills  and  mu- 
nicipal bonds  are  in  such  a  concrete,  tangible  form  that  they  are 
subject  to  taxation  where  found  irrespective  of  the  domicile  of 
the  owner.  The  debt  is  inseparable  from  the  paper  which  de- 
clares and  constitutes  it.  State  v.  Fidelity  &  Deposit  Co.,  80  S. 
W.  547,  35  Tex.  Civ.  App.  214;  Thomas  v.  Morse,  80  Tex.  291, 
16  S.  W.  48;  State  Tax  on  Foreign-Held  Bonds,  15  Wall.  300; 
New  Orleans  v.  Stempel,  175  U.  S.  309;  Blockstone  v.  Miller, 
188  U.  S.  206;  Bacon  v.  Hooker,  \77  Mass.  335,  58  N.  E.  1078, 
83  A.  St.  R.  279. 

§  649.     Duty  of  assessor  and  collector  of  cities  and  towns  to 
make  lists  of  personal  property. 

It  shall  be  the  duty  of  the  assessor  and  collector  to  make  out  a 
list  of  all  personal  property  which  has  not  been  given  in  for  as- 
sessment according  to  the  provisions  of  this  title,  and  assess  the 
same  in  the  name  of  the  owner,  if  he  be  known;  if  not,  then 
it  shall  be  assessed  by  description  of  the  property  and  as  unknown 
owner,  and  the  value  of  such  property  shall  be  determined  by  the 
board  of  equalization,  and  the  same  may  be  sold  as  in  other  cases, 
if  the  tax  be  not  paid  in  the  time  prescribed  by  law.  Sayles  R. 
S.,  Art.  502. 

§  650.     Separate  value  of  each  piece  not  required  in  assessment.* 

Revised  Statutes,  Art.  5118,  providing  that  in  assessing  per- 
sonal property  the  different  classes  of  personal  property  enu- 
merated therein  shall  be  assessed  at  their  value,  does  not  require 
that  the  separate  value  of  each  piece  shall  be  given  in  the  assess- 
ment.   Wright  V.  City  of  San  Antonio,  50  S.  W.  407. 

§  651.     Assessment,  description  of  property. 

Where  a  taxpayer  tendered  the  assessor  a  statement  worded 
"Credits,  cash,  office  furniture,  etc.,  $20,000,"  but  the  assessor  re- 
fused it,  and  placed  the  property  on  the  unrendered  roll  in  the 


Personal  Property.  359' 

same  language,  but  at  a  higher  vakiation,  the  taxpayer  can  not 
complain  that  the  description  did  not  show  the  character  of  the 
property  and  the  amount  on  each  class.  Moody  v.  City  of  Gal- 
veston, 50  S.  W.  482,  21  Tex.  Civ.  App.  16;  Trust  Co.  v.  City  of 
Oak  Cliff,  8  Tex.  Civ.  App.  217,  27  S.  W.  1036;  Cooley  on  Tax- 
ation (2d  ed.),  p.  360. 

§  652.  Cattle  taxed  in  county  where  situated- 
Owners  of  cattle  held  on  a  ranch  in  R.  County,  owing  to  drouth 
contracted  with  land  owners  in  S.  County  for  their  pasturage 
there,  and  there  kept  them  from'  October  1,  1893,  to  May  1,  1894, 
intending  to  move  them  back  as  soon  as  there  was  sufficient  pas- 
turage in  R.  County.  Held,  that  the  cattle  were  situated  in  S. 
County  on  Jan.  1,  1894,  within  the  meaning  of  Sec.  11,  Art.  10 
of  the  Constitution,  and  subject  to  taxation  there  for  the  year 
1894.    Clampitt  v.  Johnson,  17  Tex.  Civ.  App.  281,  42  S.  W.  866. 

§  653.     Non-residence  of  owner. 

It  is  not  necessary  that  the  owner  should  reside  within  the 
state  to  render  personal  property  situated  within  the  state,  liable 
to  taxation.    Hardesty  Bros.  v.  Fleming,  57  Tex.  396. 

§  654.     Sale  of  personal  property. 

If  any  person  shall  fail  or  refuse  to  pay  the  taxes  imposed  upon 
him  or  his  property  by  law  until  the  31st  day  of  January  next 
succeeding  the  return  of  the  assessment  rolls  of  the  county  to  the 
comptroller,  a  penalty  of  ten  per  cent  on  the  entire  amount  of 
such  taxes  shall  accrue,  which  penalty,  when  collected,  shall  be 
paid  proportionately  to  the  state  and  county,  and  the  collector 
of  taxes  shall  by  virtue  of  his  tax  rolls,  seize  and  levy  upon  and 
sell  so  much  personal  property  belonging  to  such  person  as  may 
be  sufficient  to  pay  his  taxes,  together  with  the  penalty  above 
provided,  interest,  and  all  costs  accruing  thereon.  Acts  1897, 
Sec.  10,  p.  136. 

§  655.     Assessment  of  taxes  of  telegraph  company. 

An  assessment  of  ta^^es  may  be  properly  made  on  a  company 
under  a  sworn  statement  of  its  chief  manager,  when  so  required 
to  be  made  by  statute.  W.  U.  T.  Co.  v.  The  State  of  Texas,  62 
Tex.  630. 

§  656.     Corn  and  cotton — Division  of  tax. 

The  word  "property"  used  in  the  statute  imposing  taxes  is  cer- 
tainly comprehensive  enough  to  embrace  corn  and  cotton;  and 


360  Taxation  in  Texas. 

•were  the  question  to  be  decided  on  the  import  of  that  term  in 
the  abstract,  it  would  be  destructive  of  the  defense  set  up.     But 
such  construction  of  the  term  "property,"  when  taken  in  con- 
nection with  the  constitution  and  law  imposing  taxes  for  the  pur- 
pose of  raising  revenue,  would  be  so  unequal,  unjust,  and  op- 
pressive to  the  planting  interest  of  the  state  that  it  can  not  be 
supposed  that  such  was  the  meaning  of  the  law.    A  single  view  of 
the  subject  will  fully  show  that  it  was  not.     The  planter's  slave 
is  assessed  at  his  full  value  as  a  slave  for  life.     Now,  it  would 
be  difficult  to  conceive  of  any  intrinsic  value  in  the  slave.     He 
is  only  valuable  as  possessing  a  capacity  for  usefulness.     He  is 
capable  of  producing  corn  and  cotton  when  employed  by  the 
planter.     Now,  if  the  slave  has  been  taxed  in  proportion  to  his 
value,  and  the  corn  and  cotton  produced  by  him  again  taxed,  it 
is,  in  eflfect,  levying  another  tax  on  the  slave.     Under  the  tax 
law  the  slave  is  assessed  annually  at  his  full  valuation,  what  it  is 
supposed  he  would  sell  for.    And  so  are  the  mules  or  teams.    If 
the  products  are  to  be  taxed,  it  surely  could  not  be  required  that 
the  slaves  and  teams  should  be  assessed  at  a  higher  valuation 
than  for  one  year's  use.    A  tax  is  imposed  on  money  at  interest, 
and  yet  the  interest  so  accruing  is  not  taxed  until  it  is  let  out 
to  interest.    If  the  corn  and  cotton  should  be  exchanged  for  other 
property,  that  property  would  be  subject  to  taxation.     So  the 
interest  accruing  on  money  loaned ;  if  that  interest  is  invested  in 
a  loan,  it  becomes  subject  to  taxation.    State  v.  Jones,  5  Tex.  384. 

§  657.     Cattle  ranging  in  two  counties. 

Art.  4676,  R.  S.,  provides  that  all  property,  real  and  personal, 
except  such  as  is  required  to  be  listed  and  assessed  otherwise, 
shall  'be  listed  and  assessed  in  the  county  where  it  is  situated, 
and  there  is  no  special  provision  excepting  from  this  requirement 
cattle  ranging  near  the  line  of  two  counties ;  yet  the  statute  does 
not  intend  to  impose  impossibilities  or  to  work  injustice,  and  a 
substantial  compliance  with  its  terms  is  all  that  is  necessary. 

If,  therefore,  one  whose  pasture  lies  in  the  county  of  his  resi- 
dence and  partly  in  an  adjoining  county,  renders  for  taxation  his 
cattle  feeding  upon  such  pasture,  and  pays  the  tax  thereon,  in 
the  county  where  he  resides  and  where  the  entire  herd  feeding  in 
his  pasture  is  controlled,  he  complies  with  the  substantial  require- 
ments of  the  statute,  the  state  receives  from  the  property  all  the 
revenue  to  which  she  is  entitled,  and  the  owner  is  not  overtaxed. 


Personal  Property.  361 

In  1884,  O.,  a  resident  of  Refugio  County,  owning  a  large  pas- 
ture lying  partly  in  the  county  of  his  residence  and  partly  in 
Aransas,  an  adjoining  county,  in  which  pasture  grazed  several 
thousand  head  of  cattle  belonging  to  him,  but  which  were  always 
herded,  as  occasion  required,  in  the  county  of  his  residence, 
was  required  by  the  assessor  of  Refugio  County,  in  pursuance  of 
written  instructions  from  the  comptroller  of  public  accounts,'  to 
render  his  entire  herd  of  cattle  for  taxation  in  that  county,  for 
that  year.  Subsequently  O.,  in  rendering  his  property  in  Aransas 
County  to  the  assessor  thereof  for  taxation,  noted  upon  his  list 
the  fact  that  all  the  cattle  in  his  pasture  had  been  rendered  to 
the  assessor  of  Refugio  County.  At  a  meeting  of  the  county 
commissioners  of  Aransas  County,  held  June  30,  1884,  to  revise 
and  approve  the  lists  submitted  by  the  assessor  of  that  county, 
the  board  added,  without  O.'s  knowledge,  to  the  list  of  property 
rendered  by  him,  four  thousand  head  of  cattle,  at  a  valuation  of 
$52,000,  part  and  parcel  of  the  herd  that  had  been  rendered  for 
taxation  in  Refugio  County.  O.  paid  to  the  tax  collector  of  Re- 
fugio County  the  taxes  upon  his  entire  herd,  and  tendered  to  the 
tax  collector  of  Aransas  County  the  taxes  due  on  his  real  estate 
in  the  latter  county,  but  the  collector  refused  to  receive  the  money 
as  the  taxes  on  such  property,  and  subsequently  levied  upon  and 
advertised  for  sale  all  of  O.'s  lands  in  Aransas  County,  to  satisfy 
the  taxes  assessed  on  both  the  lands  and  the  four  thousand  head 
of  cattle.  O.  applied  for  and  obtained  an  injunction  restraining 
the  sale.    Held: 

(1)  That  an  injunction  will  lie,  under  such  circumstances,  to 
restrain  the  sale  of  real  estate  levied  on  to  satisfy  a  tax  illegally 
assessed.  (Citing  Red  v.  Johnson,  S3  Tex.  284;  George  v.  Dean, 
47  Tex.  84,  and  Nat  Bank  v.  Rogers,  51  Tex.  606.) 

(2)  That  it  is  not  necessary,  in  such  cases,  before  applying 
for  an  injunction  to  seek  relief  from  the  board  of  equalization, 
or  other  officers  having  control  in  matters  of  taxation.  (Citing 
Hardesty  v.  F lemming,  57  Tex.  400.) 

(3)  That  it  was  unimportant  whether  the  taxes  in  Refugio 
County  were  paid  before  or  after  the  levy  which  was  sought  to  be 
enjoined.  It  was  sufficient  if  the  right  to  the  taxes  had  fully  ac- 
crued to  that  county,  and  this  was  effected  by  the  previous  as- 
sessment made  therein. 

(4)  That  it  was  not  necessary  for  O.  to  allege  at  what  time 
he  was  required  to  render  his  cattle  in  Refugio  County.     It  is 


362  Taxation  in  Texas. 

sufficient  if  it  appears  from  his  petition  that  it  was  done  before 
the  commissioners'  court  of  Aransas  County  added  the  four  thou- 
sand head  of  cattle  to  his  assessment  in  the  latter  county.  Court 
V.  O'Connor,  65  Tex,  334. 

Under  Gen.  Laws  Tex.  1887,  p.  109  (Id.,  1889,  p.  29),  provid- 
ing that  all  corporations .  owning  pastures  which  lie  on  county 
boundaries  shall  list  for  assessment  all  their  live  stock  therein  in 
the  several  counties  in  such  proportion  of  the  stock  as  the  land 
in  eachp  county  bears  to  the  whole  pasture,  the  live  stock  of  such 
corporation  is  liable^  for  taxes  assessed  thereon  in  each  county, 
although  taxes  on  the  entire  herd  had  been  assessed  and  paid  in 
the  county  in  which  the  management  of  the  business  was  con- 
ducted. Nolan  V.  San  Antonio  Ranch  Co.,  16  S.  W.  1064,  81 
Tex.  315. 

,§  658.     Taxes  on  indebtedness  of  non-resident. 

A  foreign  corporation  engaged  in  the  manufacture  and  sale 
of  pianos  had  an  office  in  this  state,  from  which  agents  were  sent 
out  to  sell  pianos,  and  notes  were  taken  in  payment.  A  store 
was  kept  in  this  state,  from  which  pianos  were  sold,  and  orders 
often  filled.  The  notes  taken  were  usually  secured  by  chattel 
mortgages,  and  made  payable  at  different  points  in  the  state,  and 
were  sent  to  the  state  manager,  who  kept  them  for  collection, 
and  from  their  proceeds  paid  all  expenses ;  the  balance  being  sent 
to  the  home  office.  Held,  that  under  Sayles  Civ.  St.,  Art.  5061, 
subjecting  all  property  to  taxation,  and  Sec.  5067,  requiring  an 
agent  to  list  all  moneys  and  other  personal  property  controlled 
by  him  as  agent,  and  all  moneys  deposited  subject  to  his  order, 
and  credits  due  from  or  owing  by  any  person,  etc.,  such  notes 
are  liable  to  taxation  in  this  state,  notwithstanding  Article  5063 
provides  that  personal  property  shall,  for  the  purpose  of  taxa- 
tion, be  construed  to  include  goods,  moneys,  credits,  and  other 
evidences  of  debt  "owned  by  citizens  of  the  state" ;  this  section 
not  being  intended  to  confine  such  taxation  to  such  property  only 
as  belonged  to  citizens  of  the  state.  Jesse  French  Piano  &  Organ 
Co.  V.  City  of  Dallas,  61  S.  W.  942. 

Rev.  St.  1895,  Art.  5063,  provides  that  "personalty"  for  the 
purpose  of  taxation  shall  be  construed  to  include  goods,  etc., 
owned  by  citizens,  whether  in  or  without  the  state.  Acts  29th 
Leg.  (Laws  1905,  p.  436,  Chap.  8),  provides  for  a  tax  for  gen- 


Personal  Property.  363 

eral  revenue  purposes  on  all  property  "owned  in  the  state,"  etc. 
Held,  that  personalty  located  in  the  state  and  owned  by  non-resi- 
dents is  subject  to  taxation.    Hall  v.  Miller,  115  S.  W.  1168. 

§  659.     Fish — Act  of  29th  legislature,  page  128. 

Acts  29th  Leg.,  p.  128,  Chap.  90,  imposing  a  tax  on  fishing 
boats  and  fish  taken  for  market  and  amending  Rev.  St.  1895,  Art. 
2514,  2518k,  is  not  void,  though  it  only  refers  in  its  title  to  the 
sections  amended  and  does  not  state  the  subject  of  the  act. 

Acts  29th  Leg.,  p.  128,  Chap.  90,  imposing  a  tax  on  fishing 
boats  and  fish  taken  for  market  and  declaring  that  the  title  to 
the  fish,  oysters,  terrapin,  and  shrimp  in  the  public  waters  of 
the  state  is  vested  in  the  state,  is  not  unconstitutional  as  con- 
taining more  than  one  subject. 

Acts  29th  Leg.,  p.  128,  Chap.  90,  imposing  a  tax  on  fishing 
boats  and  on  fish  taken  for  market,  is  not  void  as  an  ad  valorem 
tax,  in  violation  of  the  constitutional  provision  requiring  equality 
and  uniformity. 

Acts  29th  Leg.,  p.  128,  Chap.  90,  imposing  a  tax  on  fishing 
boats  and  fish  taken  for  market,  is  not  void  as  a  revenue  measure 
originated  in  the  senate,  in  violation  of  the  constitutional  provi- 
sion requiring  such  measures  to  originate  in  the  house. 

Acts  29th  Leg.,  p.  128,  Chap.  90,  authorizing  the  fish  and 
oyster  commissioner  to  confiscate  fish  sold  and  held  without  a 
permit  required  by  the  act,  is  not  void  on  the  ground  that  the 
fish,  when  reduced  to  possession,  are  private  property. 

Acts  29th  Leg.,  p.  128,  Chap.  90,  authorizing  the  confiscation 
of  fish  and  oysters  sold  and  held  without  a  permit  required  by  the 
act,  is  not  void,  as  class  legislation,  because  takers  of  shrimp  are 
not  included  in  the  forfeiture  clause. 

Acts  29th  Leg.,  p.  128,  Chap.  90,  authorizing  the  fish  and 
oyster  commissioner  to  seize  and  sell  summarily  fish  sold  and 
held  without  a  permit  required  by  the  act,  is  not  void  as  a  de- 
privation of  property  without  due  process  of  law.  Raymond  v. 
Kihhe,  95  S.  W.  .727,  43  Tex.  Civ.  App.  209. 

§  660.     Vessels — Taxable  where  owner  resides. 

Const.,  Art.  8,  Sec.  11,  provides  that  all  property,  whether 
owned  by  persons  or  corporations,  shall  be  assessed  for  taxes 
in  the  county  where  situated.  Rev.  St.  1895,  Art.  5068,  provides 
that  all  property  except  such  as  is  required  to  be  listed  and  as- 


364  Taxation  in  Texas. 

sessed  otherwise  shall  be  listed  and  assessed  in  the  county  where 
situated,  and  Article  5072  provides  that  all  persons,  companies, 
and  corporations  owning  steamboats  and  other  water  craft  shall 
list  the  same  for  assessment  and  taxation  in  the  county  in  which 
the  same  may  be  required,  registered,  or  licensed  or  kept  when 
not  so  enrolled,  etc.  Held,  that  where  coasting  vessels  were  en- 
rolled in  Galveston  County,  but  were  used  to  transport  oil  from 
points  in  Jefferson  County,  where  their  owner  was  domiciled,  to 
points  along  the  coasts  of  Texas  and  Louisiana,  they  were  taxable 
in  Jefferson  county.    State  v.  Higgins  Oil  Co.,  116  S.  W.  617. 

The  legislature  may,  in  certain  instances,  give  to  property  an 
artificial  situs  for  the  purposes  of  taxation ;  but  when  the  prop- 
erty is  physical  in  character,  or  of  a  nature  that  can  acquire  an 
actual  situs,  it  must  under  our  constitution  be  taxed  in  the  county 
where  actually  situated  or  located.  The  finding  of  the  court  is 
to  the  fact  that  these  vessels  so  taxed  have  an  actual  situs  at  Port 
Arthur,  in  the  county  of  Jeiferson,  and  are  not  and  have  never 
been  within  waters  located  within  the  territorial  jurisdiction  of 
the  city  of  Galveston, 

That  vessels  may  acquire  an  actual  situs  is  a  proposition  too 
well  settled  to  be  questioned,  and  that  the  place  of  enrollment 
and  registration  is  not  controlling,  if  the  actual  situs  is  elsewhere. 
Old  Dominion  Stea<m<ship  Co.  v.  Virginia,  198  U.  S.  299,  25  Sup. 
Ct.  686,  49  L.  Ed.  1059 ;  Ayer  &  Lord  Tie  Co.  v.  Kentucky,  202 
U.  S.  410,  26  Sup.  Ct.  679,  50  L.  Ed.  1082 ;  Mayor  v.  Baldtvin,  57 
Ala.  61,  29  Am.  Rep.  713. 

The  court  having  determined  by  a  finding,  which  is  not  dis- 
puted, and  the  actual  situs  of  these  vessels  was  at  a  place  other 
than  the  city  of  Galveston,  the  latter  was  wanting  the  jurisdic- 
tion to  assess  the  vessels  for  taxation.  Its  power  in  this  respect 
is  limited  to  property  within  the  limits  of  the  city,  or  that  of  a 
nature  intangible  and  personal,  which  has  not  acquired  an  actual 
situs  elsewhere  owned  by  the  citizens  of  that  city.  City  of  Gal- 
veston V.  J.  M.  Guffey  Petroleum  Oil  Co.,  113  S.  W.  587. 

§  661.  Vendor's  lien  notes  owned  by  non-residents  but  within 
state. 
The  state  can  exercise  its  power  to  impose  taxes  on  all  prop- 
erty within  its  jurisdiction,  and  such  taxes  may  be  imposed  on  all 
property,  tangible  and  intangible,  with  a  permanent  situs  and  lo- 
cation within  the  state. 


Personal  Property.  365 

A  non-resident  owning  lands  in  Texas  sold  them  to  agents, 
who  took  in  part  payment  the  purchasers'  negotiable  notes,  se- 
cured by  a  vendor's  lien  on  the  land.  These  notes  were  kept 
by  the  agents  in  Texas  for  collection,  the  proceeds,  when  col- 
lected, being  deposited  in  a  bank  for  the  owner's  benefit.  It  did 
not  appear  that  any  limitation  was  imposed  on  the  power  of  the 
agents  to  take,  at  maturity  of  the  notes,  such  steps  as  they  deemed 
proper  to  enforce  collection.  Held,  that  the  situs  of  the  notes 
was  within  the  state,  so  that  the  state  could  exercise  its  jurisdic- 
tion to  tax  them. 

Rev.  St.  1895,  Art.  5063,  provides  that  personal  property  shall, 
for  purposes  of  taxation,  be  construed  to  include  all  goods,  chat- 
tels, and  effects,  and  all  moneys,  credits,  bonds  and  other  evi- 
dences of  debt  owned  by  citizens  of  the  state,  whether  the  same 
be  in  or  out  of  the  state,  etc.  A  non-resident  owning  lands  in 
Texas  sold  them  to  agents,  who  took  in  part  payment  the  pur- 
chasers' negotiable  notes,  secured  by  a  vendor's  lien  on  the  land. 
These  notes  were  kept  by  the  agents  in  Texas  for  collection,  the 
proceeds,  when  collected,  being  deposited  in  a  bank  for  the  own- 
er's benefit.  It  did  not  appear  that  any  limitation  was  imposed 
on  the  power  of  the  agents  to  take  at  maturity  of  the  notes,  such 
steps  as  they  deemed  proper  to  enforce  collection.  Held,  that 
the  notes  were  subjects  of  taxation  within  the  state  under  said 
article.  Hall  v.  Miller,  110  S.  W.  165;  Hall  v.  Miller,  115  S. 
W.  1168. 


CHAPTER  XXXV. 

BANKS. 

Sec.  Sec. 

662.  Sworn   statement  to  be   fur-      669.  National  bank. 

nished  by  national  banks —  670.  What  is  subject  to  taxation. 

Penalty.  671.  Bank  deposits — How  taxable. 

663.  Money  and  notes  defined.  672.  National  bank  stock. 

664.  Assessment  of  real  estate  by  673.  Inequality   of    assessment   of 

banks.  bank  stock. 

665.  Only  real  estate  on  national      674.  Assessment  by  city  on  stocK. 

banks  subject  to  taxation.  675.  President  required  to  assess. 

666.  Share  of  banking  association       676.  Deposits    to   be    deducted    as 

liable  for  taxes.  debts. 

667.  Liability  of  bank  stock.  677.  Not  exempt  when. 

668.  National     bank     shares — De- 

ducting indebtedness. 

§  662.     Sworn  statement  to  be  furnished  by  national  banks — 
Penalty. 

If  any  president,  vice-president,  or  cashier  of  any  national  bank 
shall  fail  or  refuse  to  furnish  the  tax  assessor  or  deputy  tax  as- 
sessor, when  called  upon  to  do  so  by  such  tax  assessor  or  deputy 
tax  assessor,  a  sworn  statement,  showing : 

(1)  A  list  of  the  names  of  all  the  shareholders  of  the  stock 
of  such  national  bank. 

(2)  The  number  and  amount  of  the  shares  owned  and  held 
by  each  shareholder  of  stock  in  such  national  bank. 

(3)  The  place  of  residence  of  each  stockholder  in  such  bank, 
if  known.     (If  not  known,  that  fact  shall  be  so  stated.) 

4.  The  amount  or  amounts  of  notes  issued  by  such  national 
bank  and  circulating  as  money,  or  that  is  intended  to  circulate  as 
money;  (stating  such  amounts  in  dollars). 

(5)  The  amount  of  money  on  hand  or  in  transit,  or  in  the 
hands  of  other  banks,  bankers,  brokers  or  others,  subject  to  draft, 
whether  the  same  be  in  or  out  of  the  state. 

(6)  The  amount  of  indebtedness  of  such  bank  and  how  such 
indebtedness  is  evidenced. 

(7)  The  amount  of  paper  evidencing  "indebtedness  owned  by 
such  bank,  which  was  acquired  by  such  bank,  either  at  par  or  at 
a  discount. 


Personal  Property.  367 

Any  such  president,  vice-president,  or  cashier  of  a  "national 
bank"  so  failing  or  refusing  to  furnish  such  statement,  as  above 
required,  shall  be  deemed  guilty  of  a  misdemeanor,  and  upon  con- 
viction thereof,  shall  be  punished  by  a  fine  of  not  less  than  one 
hundred  dollars,  nor  more  than  one  thousand  dollars,  and  by  con- 
finement in  jail  not  less  than  ten  days,  nor  more  than  thirty 
days.     (Acts  1897,  p.  157,  Sec.  1.)     S.  R.  S.,  Art.  5079a. 

§  663.     Money  and  notes  defined. 

By  the  term  money  and  notes,  mentioned  in  the  preceding  arti- 
cle, is  meant  all  money  owned  and  on  hand  by  such  bank,  wheth- 
er on  deposit  or  otherwise.  (lb..  Sec.  2.)  See  Arts.  5064,  5088, 
5088b.     S.  R.  S.,  Art.  5079b. 

§  664.     Assessment  of  real  estate  by  banks. 

Every  banking  corporation,  state  or  national,  doing  business  in 
this  state,  shall,  in  the  city  or  town  in  which  it  is  located,  render 
its  real  estate  to  the  assessor  of  taxes  at  the  time  and  in  the 
manner  required  of  individuals.  At  the  time  of  making  such  ren- 
dition the  president  or  some  other  officer  of  said  bank  shall  file 
with  said  assessor  a  sworn  statement  showing  the  number  and 
amount  of  the  shares  of  said  bank,  the  name  and  residence  of  each 
shareholder,  and  the  number  and  amount  of  shares  owned  by  him. 
Every  shareholder  of  said  bank  shall,  in  the  city  or  town  where 
said  bank  is  located,  render  at  their  actual  value  to  the  assessor 
of  taxes  all  shares  owned  by  him  in  such  bank;  and  in  case  of 
his  failure  so  to  do,  the  assessor  shall  assess  such  unrendered 
shares  as  other  unrendered  property.  E^ch  share  in  such  bank 
shall  be  taxed  only  for  the  difference  between  its  actual  cash 
value  and  the  proportionate  amount  per  share  at  which  its  real 
estate  is  assessed.  The  taxes  due  upon  the  shares  of  banking 
corporations  shall  be  a  lien  thereon,  and  no  banking  corporation 
shall  pay  any  dividend  to  any  shareholder  who  is  in  default  in 
the  payment  of  taxes  due  on  his  shares,  nor  shall  any  banking 
corporation  permit  the  transfer  upon  its  books  of  any  share,  the 
owner  of  which  is  in  default  in  the  payment  of  his  taxes  upon  the 
same.  Nothing  herein  shall  be  so  construed  as  to  tax  national 
or  state  banks  or  the  shareholders  thereof,  at  a  greater  rate  than 
is  assessed  against  other  moneyed  capital  in  the  hands  ^of  indi- 
viduals.    (Acts  1885,  p.  106.)     S.  R.  S.,  Art.  5080. 


368  Taxation  in  Texas. 

§  665.     Only  real  estate  on  national  banks  subject  to  taxation. 

As  Rev.  St.  U.  S.,  Sec.  5219  (U.  S.  Comp.  St.  1901,  p.  3502), 
permits  taxation  by  state  of  the  real  estate  only  of  national  banks, 
such  a  bank  is  under  no  legal  obligation  to  render  and  pay  taxes 
on  its  stock.  First  National  Bank  of  Lampasas  v.  City  of  Lam- 
pasas, 78  S.  W.  42,  33  Tex.  Civ.  App.  530. 
Stock  of  national  bank  not  liable  for  taxes  or  penalties. 

A  national  bank  having  voluntarily  rendered  its  capital  stock 
for  taxation,  and  stated,  in  its  answer,  in  an  action  to  recover 
the  taxes  thereon,  as  increased  in  value  on  equalization,  that  it 
was  willing  to  pay  taxes  according  to  its  rendition,  it  may  be  held 
liable  for  the  taxes  on  the  value  of  its  stock  as  rendered,  though 
taxation  of  such  stock  is  unauthorized ;  but  an  equalization  board 
could  not,  without  its  consent,  augment  its  conceded  liability  by 
adding  other  personal  property  to  its  rendition  or  raising  the  value 
of  that  which  had  been  rendered. 

A  national  bank,  having  tendered  payment  of  the  taxes  legally 
due  from  it,  in  accordance  with  its  rendition  of  property  for  tax- 
ation, and  before  the  time  fixed  by  the  statute  for  the  accrual  of 
the  penalty  for  non-payment,  is  not  liable  for  the  penalty  in  an 
action  to  recover  in  addition  an  amount  exceeding  that  which  was 
legally  due,  and  for  which  it  was  not  liable.  First  National  Bank 
of  Lampasas  v.  City  of  Lampasas,  78  S.  W.  42,  33  Tex.  Civ.  App. 
530. 

§  666.     Share  of  banking  association  liable  for  taxes. 

It  is  well  settled  that  shares  of  banking  associations  authorized 
by  the  Act  of  Congress  of  June  3,  1864,  "to  provide  a  national 
currency,"  in  the  hands  ,of  the  shareholders,  are  liable  to  taxa- 
tion by  the  states,  within  the  limitations  set  forth  in  said  act, 
although  the  capital  of  such  bank  is  vested  in  national  securities 
declared  by  said  act  as  "exempt  from  taxation  by  or  under  state 
authority." 

The  Act  of  June  3,  1873  (13th  Leg.,  204,  205),  requires  the 
assessment  for  taxation  of  "any  shares  or  stock  in  any  banking 
company  or  corporation."  The  words  "share"  and  "stock"  are 
used  as  synonymous,  and  each  corporator  is  required  to  give  in  for 
taxation  the  part  or  portion  of  the  capital  stock  of  the  corpora- 
tion, or  association,  he  owns. 

It  is  not  necessary  that  it  be  embodied  in  the  state  law  impos- 
ing such  a  tax,  that  it  is  not  greater  than  that  levied  upon  capital 


Banks.  369 

in  the  hands  of  individual  citizens,  or  upon  the  shares  of  banks 
organized  by  the  state  laws.  It  is  sufficient  that  such  law  in  fact 
does  not  violate  those  provisions  of  the  national  currency  act. 

It  is  not  a  sufficient  ground  for  an  injunction  restraining  the 
collection  of  a  tax  upon  an  assessment  actually  made,  that  it  has 
not  been  correctly  described  on  the  assessment  rolls,  prepared 
from  the  assessments  actually  made.  Prima  facie  the  tax  is  due 
upon  the  assessment,  and  equity  will  not  aid  one  who  is  himself 
in  default.    Harrison  v.  Vines,  46  Tex.  15. 

§  667.     Liability  of  bank  stock. 

Under  the  laws  in  force  in  1876,  a  national  bank  was  not  liable 
to  pay  state  and  county  taxes  for  that  year,  assessed  on  shares  of 
stock  in  the  bank  not  owned  by  it,  but  owned  by  individual  share- 
holders.   National  Bank  v.  Rogers,  51  Tex.  606. 

§  668.     National  bank  shares — Deducting  indebtedness. 

Rev.  St.,  Art.  5063,  authorizes  taxpayers  to  deduct  the  amount 
of  their  indebtedness  from  their  taxable  credits ;  and  Rev.  St. 
U.  S.,  Sec.  5219  provides  that  national  bank  shares  shall  not  be 
assessed  at  a  greater  rate  than  other  moneyed  capital  in  the  hands 
of  individual  citizens  of  any  state.  Held,  that  a  taxpayer,  having 
no  credits  against  which  his  indebtedness  might  be  set  off,  was 
not  entitled  to  set  such  indebtedness  against  the  assessed  value 
of  his  national  bank  shares,  in  the  absence  of  proof  that  a  rela- 
tively large  sum  of  moneyed  capital  obtained  exemption  under 
Section  5063  which  was  employed  in  competition  with  the  capital 
of  national  banks,  and  that  such  amount  belongs  to  natural  per- 
_sons,  and  not  to  corporations. 

Evidence  that  mortgages  amounting  to  many  millions  of  dol- 
lars are  recorded  in  a  given  county  of  the  state  within  any  year, 
without  a  showing  that  the  mortgagees  are  residents  the  state, 
and  are  engaged  in  loaning  money  so  as  to  compete  with  the 
business  of  national  banks,  and  that  other  millions  are  loaned  at 
interest  by  citizens  of  the  state,  without  a  showing  that  such  cred- 
its are  escaping  taxation  by  being  offset  against  the  indebtedness 
of  the  lenders,  and  that  still  other  millions  are  invested  in  private 
banks,  without  showing  what  proportion  thereof  is  invested  in 
savings  banks,  or  that  any  discrimination  is  made  by  the  state  law 
between  private  and  national  banks  with  reference  to  the  right  to 
subtract  debts  from  credits  for  the  purpose  of  taxation,  does  not 
24 


370  Taxation  in  Texas. 

show  such  discrimination  against  the  owners  of  national  bank 
shares  as  to  entitle  them  to  the  exemption  of  such  shares  from 
taxation  under  Rev.  St.  U.  S.,  Sec.  5219,  providing  that  the  tax- 
ation of  national  bank  stock  shall  not  be  at  a  greater  rate  than 
is  assessed  on  other  moneyed  capital  in  the  hands  of  individual 
citizens  of  the  state. 

Rev.  St.,  Art.  5063,  permitting  the  taxpayer  to  deduct  his  in- 
debtedness from  his  credits,  being  based  on  public  poHcy,  and 
not  intended  as  nor  resulting  in  unfriendly  discrimination  against 
investments  in  national  banks  and  in  view  of  the  advantages  en- 
joyed by  capital  invested  in  such  corporations,  the  owners  of  na- 
tional bank  stock  are  not  entitled  to  deduct  their  indebtedness 
from  the  value  of  their  stock  for  the  purposes  of  taxation. 
Primm  v.  Fort,  57  S.  W.  86,  23  Tex.  Civ.  App.  605. 

§  669.     National  bank. . 

The  Act  of  Congress  of  1868  (Sec.  5218)  did  not  require  that 
the  restrictions  contained  in  it  should  be  embodied  in  the  state 
law  of  taxation.  It  is  sufficient  that  upon  a  fair  construction  of 
the  state  laws  regarding  taxation  none  of  the  provisions  of  the 
act  referred  to  are  violated. 

The  statutes  of  Texas  relating  to  taxation  do  not  contemplate 
that  real  estate  belonging  to  banks  shall  be  taxed.  The  provi- 
sions of  the  state  law  which  provide  for  the  taxation  of  any  prop- 
erty except  shares  in  national  banks  are  inapplicable  to  these  in- 
stitutions. To  hold  those  provisions  of  the  tax  law  wh;ch  relate 
to  other  corporations  and  individuals  applicable  to  national  banks 
would  involve  a  disregard,  not  only  of  an  act  of  Congress,  but  of 
the  state  constitution,  for  they  would  subject  national  bank  shares 
of  stock  to  double  taxation.   . 

National  bank  shares  of  stock  are  not  assessed  at  a  greater 
rate  than  other  moneyed  capital  in  the  hands  of  individuals.  The 
privilege  accorded  banking  institutions,  other  than  national  banks, 
of  being  allowed  in  assessments  deductions  for  deposits  made  with 
them,  and  debts  due  by  them,  is  in  effect  allowed  to  shareholders 
in  national  banks. 

The  value  of  a  bank  share  depends  upon  the  value  of  the  fran- 
chise, capital,  and  property  of  the  bank  of  all  kinds,  less  the 
amount  of  its  debts.  All  such  property  in  the  hands  of  individuals 
and  corporations,  other  than  national  banks,  is  taxed  under  our 


Banks.  371 

Revised  Statutes.  In  arriving  at  the  value  of  bank  shares,  liabili- 
ties must  be  deducted  from  credits,  and  thus  the  shareholder  ob- 
tains the  benefit  of  the  reduction.  Not  to  allow  banks  or  indi- 
viduals a  deduction  in  making  assessment  of  taxes  for  the  prop- 
erty of  others  held  by  them,  such  as  deposits,  and  to  tax  these 
against  the  owner  of  the  deposits,  would  be  to  impose  a  double 
tax  on  the  same  property. 

An  individual  can  not,  in  the  assessment  of  taxes  on  his  prop- 
erty, have  his  debts  deducted  in  the  estimate  from  the  assessment 
made  against  his  property  generally,  but  only  from  the  indebted- 
ness due  himi.  A  bank  share  is  not  a  debt  due  its  owner,  and  in 
assessing  taxes  against  such  owner,  his  debts  should  be  deducted 
from  his  credits,  in  arriving  at  his  taxable  property,  and  not  from 
his  bank  share. 

The  fact  that  legal  tender  notes  and  United  States  bonds  be- 
longing to  corporations  or  individuals  are  not  taxed  in  Texas  is 
because  of  the  positive  requirements  of  the  Act  of  Congress. 

The  laws  of  Texas  having  provided  for  the  assessment  of  the 
same  percentage  of  taxation  against  every  description  of  prop- 
erty, except  a  few  articles  exempt  from  public  policy,  and  hav- 
ing furnished  means  for  a  just  and  fair  assessment  of  all  moneyed 
capital,  so  as  to  obtain  as  near  as  practicable  an  equal  rate  of  tax- 
ation upon  all,  have  complied  with  the  true  intent  of  the  Act  of 
Congress  (Sec.  5219,  Rev.  Stat.  U.  S.),  and  the  taxation  of  the 
shares  of  national  banks,  is  not  invalid. 

There  is  nothing  in  the  laws  requiring  shares  in  national  banks 
to  be  taxed  elsewhere  than  in  the  place  where  they  are  located. 
Rosenberg  v.  Weekes,  67  Tex.  578. 

§  670.     What  is  subject  to  taxation. 

All  the  property,  both  real  and  personal,  of  a  bank  chartered 
under  the  laws  of  Texas  is  subject  to  taxation.  To  tax  the  shares 
of  such  a  bank,  which  are  but  evidences  of  an  interest  in  property 
already  taxed,  would  be  in  effect  to  impose  double  taxation. 

The  fact  that  the  bank  fails  to  render  its  property  for  taxa- 
tion will  not  authorize  an  assessor  to  list  for  taxation  its  shares 
of  stock.    Gillespie  v.  Gaston  &  Thomas,  67  Tex.  599. 

§  671.     Bank  deposits — How  taxable. 

Although  a  deposit  in  bank  subject  to  the  sight  check  of  the 
depositor  is  usually  held  to  be  only  a  debt  against  the  bank,  it  is 


372  Taxation  in  Texas. 

regarded  by  the  laws  of  Texas  providing  for  the  rendition  of 
property  for  taxation  as  cash,  and  as  such  is  not  subject  to  be 
set  off  for  the  purposes  of  taxation  by  -the  liabilities  of  the  de- 
positor. 

A  depositor  of  money  in  bank  subject  to  his  sight  check  can 
not  escape  its  taxation  as  cash  by  showing  that  the  bank  did  not, 
at  the  time  it  was  assessed,  actually  have  so  much  money  in  its 
vaults.    Campbell  v.  Wiggins,  20  S.  W.  730,  2  Tex.  Civ.  App.  1. 

§  672.     National  bank  stock. 

The  stockholders  of  a  national  bank  can  not  have  deducted  from 
the  values  of  their  shares  of  stock,  when  rendered  to  the  state 
officer  of  a  bank  to  file  with  the  assessor  a  swt)rn  statement  show- 
United  States  bonds,  or  held  by  the  bank  in  form  of  legal  tender 
notes.    Adair  v.  Robinson,  25  S.  W.  734,  6  Tex.  Civ.  App.  275. 

§  673.     Inequality  of  assessment  of  bank  stock. 

Where  national  bank  stock  was  assessed  in  a  county  at  an  85 
per  cent  valuation,  while  all  the  other  property  subject  to  taxa- 
tion was  assessed  at  a  41  per  cent  valuation,  there  was  discrim- 
ination and  inequality  of  taxation  as  to  the  bank  stock,  and  the 
owners  thereof  might  sue  to  enjoin  the  collection  of  a  tax  based 
on  the  excessive  valuation.    Langley  v.  Smith,  126  S.  W.  660. 

§  674.     Assessment  by  city  on  stock. 

Marshall  City  Charter,  Sec.  287,  provides  that  property  shall 
be  listed  for  taxation  as  prescribed  in  the  charter  and  by  the  gen- 
eral laws  regarding  general  state  taxation  which  are  applicable. 
Rev.  St.  1895,  Art.  5079,  provides  a  method  under  which  all 
banks,  bankers,  brokers,  or  dealers  in  exchange  other  than  na- 
tional banks  shall  list  certain  personalty,  and  that  other  person- 
alty than  that  mentioned  and  real  estate  shall  be  listed  as  .other 
personalty  and  real  estate.  Article  5080  provides  for  the  rendi- 
tion of  real  estate  owned  by  banks  and  bankers,  and  requires  an 
officer  for  taxation,  the  sum  of  money  invested  by  the  bank  in 
ing  the  number  of  shares  of  stock  in  the  bank,  the  name  and 
residence  of  each  shareholder,  with  the  number  and  amount  of 
the  shares  owned  by  him,  and  requires  each  shareholder  to  render 
at  their  actual  value  to  the  assessor  all  shares  owned  by  him  in 
such  bank,  and  provides  for  the  taxation  of  such  shares.  Held, 
that  Article  5080  operates  to  except  incori>orated  state  banks  from 


Banks.  373 

the  provisions  of  Article  5079  in  so  far  as  that  article  provides  a 
basis  of  assessing  the  personal  property  of  such  banks,  and  pro- 
vides a  means  of  taxing  the  personal  property  of  state  banking 
corporations  in  the  hands  of  the  shareholders,  so  that  a  state  bank 
as  a  corporation  is  not  liable  for  any  taxes  except  those  assessed 
against  its  real  property,  and  an  assessment  against  such  a  bank 
by  the  city  of  a  personal  tax  on  its  stock,  surplus,  and  undivided 
profits  was  unauthorized.  City  of  Marshall  v.  State  Bank,  127 
S.  W.  1083. 

§  675.     President  required  to  assess. 

Article  113  of  the  Penal  Code,  which  requires  the  taxpayer  to 
render  his  property  for  assessment,  applies  not  only  to  the  prop- 
erty actually  owned  by  him,  but  to  all  property  held  by  him  in  a 
fiduciary  capacity,  and  includes  national  bank  officials  with  respect 
to  the  shares,  stocks,  etc.,  owned  by  the  individuals  of  the  cor- 
poration.   Downes  v.  State,  3  S.  W.  242,  22  Tex.  Crim  App.  393. 

§  676.     Deposits  to  be  deducted  as  debts. 

Statutes  of  Texas  permitting  private  banks  to  deduct  their  de- 
posits from  their  taxable  assets  do  not  discriminate  against  na- 
tional banks,  which  are,  by  Act  of  March  31,  1885,  required  to 
render  a  sworn  statement  of  the  number  of  their  shares,  each 
share  for  its  actual  cash  value,  less  its  proportion  of  real  estate, 
which  is  taxed  separately,  since,  to  determine  such  value,  it  is  nec- 
essary to  deduct  deposits,  as  debts  against  the  bank.  Engelke  v. 
Schlender,  12  S.  W.  999,  75  Tex.  559;  Grimn  v.  Heard,  14  S.  W. 
892,  78  Tex.  607. 

§  677.     Not  exempt  when. 

Money  in  the  hands  of  others  subject  to  draft  is  a  credit  due 
the  bank,  and  is  not  exempt,  though  the  money  originally  depos- 
ited may  have  been  treasury  notes.  Griffin  v.  Heard,  14  S.  W. 
892,  78  Tex.  607. 


CHAPTER  XXXVI. 

RAILROADS. 

Sec.  Sec. 

678.  Assessment  by  railroads.  685.  Exemptions      of     property — 

679.  Railroads    to    return    sworn  Pleadings. 

statements — When,  etc.  686.  Assessment  as  to  bridges  as 

680.  Property  shall  be  assessed.  roadbed. 

681.  Mode  of  assessment.  687.  Improper     rendition — Double 

682.  Municipal  taxes.  assessment. 

683.  Gross  receipts.  688.  Evidence  of  payment. 

684.  Exemption  I.  &  G.  N.  R.  R. 

Co. 

§  678.     Assessments  by  railroads. 

It  shall  be  the  duty  of  every  railroad  corporation  in  this  state 
to  deliver  a  sworn  statement,  on  or  before  the  first  day  of  June 
of  each  year,  to  the  assessor  of  each  county  and  incorporated  city 
or  town,  into  or  through  which  any  part  of  their  road  may  run  or 
in  which  they  own  or  are  in  possession  of  real  estate,  a  classi- 
fied list  of  all  real  estate  owned  by  or  in  possession  of  said  com-, 
pany  in  said  county,  town  or  city,  specifying: 

( 1 )  The  whole  number  of  acres  of  land,  lot  or  lots,  exclusive 
of  their  right  of  way  and  depot  grounds  owned,  possessed  or  ap- 
propriated for  their  use,  with  a  valuation  affixed  to  the  same. 

(2)  The  whole  length  of  the  railroad  and  the  value  thereof 
per  mile,  which  valuation  shall  include  right  of  way,  roadbed,  su- 
perstructure, depots  and  grounds  upon  which  said  depots  are 
situate,  and  all  shops  and  fixtures  of  every  kind  used  in  operating 
said  road. 

(3)  All  personal  property  of  whatsoever  kind  or  character, 
except  the  rolling  stock  belonging  to  the  company  or  in  their  pos- 
session in  each  respective  county,  listing  and  describing  the  said 
personal  property  in  the  same  manner  as  is  now  required  of 
citizens  of  this  state.     (Acts  1885,  p.  61.)     S.  R.  S.,  Art.  5082. 

All  property  of  railroad  companies,  of  whatever  description, 
lying  or  being  within  the  limits  of  any  city  or  incorporated  town 
within  this  state,  shall  bear  its  proportionate  share  of  municipal 
taxation,  and  if  any  such  property  shall  not  have  been  heretofore 


Banks,  375 

rendered,  the  authorities  of  the  city  or  town  within  which  it  lies 
shall  have  power  to  require  its  rendition,  and  collect  the  usual 
municipal  tax  thereon,  as  on  other  property  lying  within  said 
municipality.     Sec.  5,  Art.  8,  State  Constitution. 

A  board  of  appeal  created  by  a  city  charter,  to  hear  grievances 
as  to  assessments,  made  by  the  assessor,  has  no  power  to  add  a 
franchise  of  a  railway  company  to  the  lists  of  property,  on  ac- 
count of  the  company's  and  the  assessor's  failure  to  list  it.  5*.  A. 
St.  Ry.  Co.  V.  City  of  San  Antonio,  54  S.  W.  907. 

Tax  lien  on  lots  owned  by  a  railroad  company,  but  not  used  in 
its  business,  on  the  insolvency  thereof,  held  to  extend  only  to  such 
lots,  and  not  to  secure  the  payment  of  taxes  due  on  other  prop- 
erty of  the  insolvent  to  the  impairment  of  a  traffic  balance  lien 
on  said  lots.  International  &  G.  N.  R.  Co.  v.  Coolidge,  62  S.  W. 
1097,  26  Tex.  Civ.  App.  595. 

§  679.     Railroads  to  return  sworn  statements  when,  etc. 

It  shall  be  the  duty  of  every  railroad  corporation  in  this  state 
to  deliver  a  sworn  statement,  on  or  -before  the  first  day  of  April 
in  each  year,  to  the  assessor  of  the  county  in  which  its  principal 
office  is  situated,  setting  forth  the  true  and  full  value  of  the  roll- 
ing-stock of  said  railroad,  together  with  the  names  of  all  the 
counties  through  which  it  runs,  and  the  number  of  miles  of  road- 
bed in  each  of  said  counties,  and  the  said  assessment  shall  be  sub- 
mitted to  the  board  of  equalization  of  the  county  in  which  its 
principal  office  is  situated  for  review,  as  is  provided  by  Article 
5120  of  this  code  and  the  other  laws  of  this  state  in  respect  to 
boards  of  equalization,  on  the  first  Monday  in  June  in  each  year, 
or  as  soon  thereafter  as  practicable,  and  such  board  shall  certify 
such  final  valuation  when  made,  without  delay,  to  the  comp- 
troller of  public  accounts,  who  shall  proceed  at  once  to  appor- 
tion the  amount  of  such  valuation  among  the  said  counties  in 
proportion  to  the  distance  such  road  may  run  through  any  such 
county,  and  shall  certify  such  apportionment  to  the  assessors  of 
such  counties,  and  the  same  shall  constitute  part  of  the  tax 
assets  of  such  counties,  and  the  assessor  of  each  of  said  counties 
shall  list  and  enter  the  same  upon  the  rolls  for  taxation,  as  other 
personal  property  situated  in  said  county;  provided,  that  any 
railway  company  organized,  and  having  its  principal  office  with- 
out the  state,  and  which  may  own  or  operate,  as  lessee  or  other- 


y7(i  Taxation  in  Texas. 

wise,  any  line  of  railroad  which  is  partly  within  the  state  and 
partly  without,  may  render  its  rolling  stock  for  taxation  in  the 
county  where  such  company  owning  said  railroad  has  established 
its  office  within  this  state,  and  a  proportional  part  of  such  com- 
pany's rolling  stock  shall  be  rendered  and  assessed  for  taxation 
within  the  state,  according  to  the  number  of  miles  of  such  rail- 
way therein,  as  compared  with  the  number  of  miles  without  the 
state.     (Acts  1885,  p.  30.)     S.  R.  S.,  Art.  5083. 

§  680.     Where  property  shall  be  assessed. 

All  property  of  railroad  companies  shall  be  assessed,  and  the 
taxes  collected  in  the  several  counties  in  which  said  property  is 
situated,  including  so  much  of  the  roadbed  and  fixtures  as  shall 
be  in  each  county.  The  rolling  stock  may  be  assessed  in  gross 
in  the  county  where  the  principal  office  of  the  company  is  located, 
and  the  county  tax  paid  upon  it  shall  be  apportioned  by  the  comp- 
troller, in  proportion  to  the  distance  such  road  may  pass  through 
any  such  county,  among  the  several  counties  through  which  the 
road  passes,  as  a  part  of  their  tax  assets.  Sec.  8,  Art.  8,  State 
Const. 

§  681.     Mode  of  assessment. 

Sayles  Ann.  Civ.  St.  1897,  Arts.  5073,  5082,  provide  for  a  list- 
ing and  assessment  in  each  county  of  railroad  real  estate,  speci- 
fying the  number  of  miles  and  value  per  mile,  which  valuation 
shall  include  right  of  way,  depots,  depot  grounds,  etc.  Article 
5120a  provides  that  the  assessor  shall  list  for  taxation  property 
unrendered  in  past  years  "in  the  manner  prescribed  in  the  preced- 
ing article."  Article  5119  referred  to,  provides  for  a  listing  of 
property,  specifying  the  manner  of  describing  it  by  giving  the 
name  of  the  owner,  abstract  number,  etc.,  such  also  being  the 
manner  of  assessing  ordinary  real  property  as  prescribed  by 
Article  5118.  Held,  that  an  assessment  under  Section  5120a  of 
an  unrendered  portion  of  a  railroad  roadbed  is  sufficient  which 
gives  the  length  and  assessed  value  of  such  unrendered  roadbed. 

Under  Sayles  Ann.  Ciy.  St.  1897,  Art.  5082,  providing  that  ev- 
ery railroad  shall  deliver  to  the  county  assessor  a  list  specifying 
the  length  of  the  road  in  the  county  and  valuation  per  mile,  in- 
cluding depots,  depot  grounds,  etc.,  a  railroad  is  assessed  as  an 
entirety,  and  not  as  so  many  distinct  miles  of  road  or  distinct 
parts  of  the  surveys  over  which  it  passes.  State  v.  St.  Louis 
Southwestern  Ry.  Co.,  96  S.  W.  69,  43  Tex.  Civ.  App.  533. 


Railroads.  377 

§  681a.     State  may  have  lien  on  undivided  interest. 

Under  Sayles  Ann.  Civ.  St,  1897,  Sec.  5082,  providing  for  the 
assessment  of  a  railroad  within  a  county  as  an  entirety,  and  not 
as  so  many  distinct  miles  of  road,  the  state,  in  an  action  for  the 
recovery  of  taxes  on  an  unrendered  portion  of  the  roadbed  is  en- 
titled to  a  decree  for  the  ^foreclosure  of  a  lien  on  an  undivided 
interest  in  the  road.  State  v.  St.  Louis  S.  W.  Ry.  Co.,  96  S.  W. 
69,  43  Tex.  Civ.  App.  533. 

§  682.     Municipal  taxes. 

Const.,  Art.  8,  Sec.  5,  declares  that  all  railroad  property  within 
the  limits  of  any  city  shall  bear  its  proportionate  share  of  mu- 
nicipal taxation,  and,  if  not  previously  rendered,  the  city  authori- 
ties shall  have  power  to  require  its  rendition  and  collect  the  usual 
municipal  tax  thereon.  Section  8  declares  that  property  of  rail- 
road companies  shall  be  assessed  and  taxes  collected  in  the  sev- 
eral counties  in  which  the  property  is  situated,  including  so  much 
of  the  roadbed  and  fixtures  as  shall  be  in  each  county ;  and  that 
the  rolling  stock  shall  be  assessed  in  gross  in  the  county  where 
the  principal  office  of  the  company  is  located,  and  the  county 
tax  paid  on  it  shall  be  apportioned  by  the  comptroller  in  propor- 
tion to  the  distance  the  road  may  run  through  any  such  county 
among  the  several  counties  through  which  the  road  passes  as  a 
part  of  their  assets.  Held,  that,  under  Rev.  St.  1895,  Art.  5083, 
providing  for  the  general  taxation  of  the  rolling-stock  of  rail- 
road corporations,  and  Article  500,  providing  that  only  property 
situated  within  the  limits  of  a  city  is  taxable  by  it,  a  city  con- 
taining the  principal  office  of  a  railroad  company  was  not,  for 
that  reason,  authorized  to  levy  municipal  taxes  on  all  the  rail- 
road's rolling  stock,  only  a  small  portion  of  which  would  neces- 
sarily be  within  the  city  on  the  1st  day  of  January  of  each  year; 
the  term  "lying  or  being  within  the  limits  of  any  city  or  incor- 
porated town,"  etc.,  when  applied  to  tangible  movable  property, 
meaning  only  such  property  as  is  actually  and  physically  within 
the  limits  of  the  city. 

Where  an  assessor  sued  for  commissions  for  making  an  assess- 
ment on  the  rolling  stock  of  a  railroad  company,  basing  his  right 
to  recover  on  the  theory  that  all  of  the  rolling-stock  of  the  road 
was  taxable  in  such  city,  which  was  erroneous,  and  it  did  not  ap- 
pear that  the  commissions  to  which  plaintiff  would  be  entitled  on 


378  Taxation  in  Texas. 

an  assessment  of  such  portion  of  the  rolling  stock  as  the  city  was 
entitled  to  tax  would  amount  to  a  sum  within  the  jurisdiction  of 
the  trial  court,  the  petition  was  demurrable  under  the  rule  that 
where  plaintiff  relies  on  different  or  separate  groups  of  facts, 
some  of  which  disclose  no  cause  of  action  on  their  face,  the  juris- 
diction of  the  trial  court  must  be  determined  from  the  amount  of 
the  claim  resting  on  those  facts  not  subject  to  general  demur- 
rer.   City  of  Tyler  v.  Coker,  124  S.  W.  729. 

§  683.     Gross  receipts. 

Section  1.  Every  railroad  corporation,  or  the  receiver  thereof, 
and  every  other  person,  firm  or  association  of  persons,  owning, 
operating,  managing  or  controlling  any  line  of  railroad  in  this 
state,  for  the  transportation  of  passengers,  freight  and  baggage, 
or  either,  shall  pay  to  the  state  an  annual  tax  for  the  year  1905, 
and  for  each  calendar  year  thereafter,  equal  to  one  per  centum 
of  its  gross  receipts,  if  such  line  of  railroad  lies  wholly  within 
the  state ;  and  if  such  line  of  railroad  lies  partly  within  and 
partly  without  the  state,  it  shall  pay  a  tax  equal  to  such  propor- 
tion of  the  said  one  per  centum  of  its  gross  receipts  as  the  length 
of  the  portion  of  such  line  within  the  state  bears  to  the  whole 
length  of  such  line ;  provided,  that  if  satisfactory  evidence  is  sub- 
mitted to  the  comptroller  at  any  time  prior  to  the  date  fixed  in 
Section  2  of  this  Act  for  the  payment  of  the  tax  herein  imposed, 
that  any  other  proportion  more  fairly  represents  the  proportion 
which  the  gross  receipts  of  any  such  railroad  for  any  year  within 
this  state  bears  to  its  total  gross  receipts,  it  shall  be  his  duty  to 
levy  and  collect  for  such  year  from  such  railroad  a  tax  equal  to 
such  other  proportion  of  one  per  centum^  of  its  total  gross  re- 
ceipts. 

Sec.  2.  For  the  purpose  of  determining  the  amount  of  such 
tax,  the  president,  vice-president,  general  manager,  treasurer  or 
superintendent  of  such  railroad  corporation,  or  the  receiver  there- 
of, or  such  other  person,  firm  or  association  of  persons  shall,  on 
or  before  the  first  day  of  October,  1905,  and  annually  thereafter, 
report  to  the  comptroller  of  public  accounts,  under  oath,  the  gross 
receipts  of  such  line  of  railroad,  from  every  source  whatsoever, 
for  the  year  ending  on  the  30th  day  of  June  last  preceding,  and 
shall  immediately  pay  to  the  state  treasurer  the  annual  tax  herein 
imposed,  calculated  on  the  gross  receipts  so  reported.    The  comp- 


Railroads.  379 

troller  shall  have  power  to  require  such  other  reports  and  affi- 
davits as  may  in  his  judgment  be  necessary  to  protect  the  interests 
of  the  state,  and  he  shall  estimate  such  tax  on  the  true  gross 
receipts  thereby  disclosed,  and  assess  and  enforce  the  collection  of 
such  tax. 

Sec.  3.  Every  person  required  to  make  reports  by  this  act,  or 
by  the  comptroller  of  public  accounts,  under  the  powers  herein 
given,  who  shall  fail  or  refuse  to  make  such  reports,  for  a  longer 
period  than  thirty  days,  shall  be  deemed  guilty  of  a  misdemeanor, 
and  upon  conviction  shall  be  fined  in  any  sum  not  less  than  one 
hundred  nor  more  than  five  hundred  dollars,  and  each  day  of 
failure  or  refusal  after  said  thirty  days  shall  constitute  a  separate 
offense. 

Sec.  4.  Should  such  report  not  be  filed  with  the  comptroller, 
and  the  annual  tax  thereon  estimiated  paid  to  the  treasurer  on  or 
before  the  first  day  of  October  of  any  year,  a  penalty  of  ten  per 
centum  upon  the  amount  of  such  tax  shall  accrue  thereon  and  be 
added  thereto;  and  in  case  such  report  is  not  made  or  such  tax 
and  the  penalty  thereon  are  not  paid  on  or  before  the  first  day  of 
November  thereafter,  or  in  case  of  a  failure  to  furnish  the  addi- 
tional report  or  affidavit  required  by  the  comptroller,  for  a  longer 
period  than  thirty  days,  after  demand  therefor,  or  in  case  of, 
failure  to  pay  within  thirty  days  any  tax  or  additional  tax  assessed 
by  the  comptroller,  under  this  act,  every  such  railroad  corporation, 
or  receiver  thereof,  or  other  such  person,  firm  or  association  of 
persons  shall  forfeit  and  pay  to  the  state  the  sum  of  two  hun- 
dred dollars  for  each  day  any  of  said  reports  or  payments  may  be 
delayed,  after  the  expiration  of  such  periods  respectively. 

Sec.  5.  The  attorney  general  is  authorized  and  required,  upon 
request  by  the  comptroller,  to  bring  suit  in  the  name  of  the  state, 
in  Travis  County,  against  the  proper  parties  defendant,  to  recover 
all  taxes,  penalties  and  forfeitures  mentioned  in  this  act,  and 
venue  and  jurisdiction  of  such  suits  is  hereby  expressly  conferred 
upon  the  courts  of  Travis  County.  Service  of  all  process  issued 
in  such  suits  may  be  had  upon  any  officer  or  agent  of  such  per- 
son, firm,  association  of  persons,  corporation,  or  receiver  thereof, 
within  this  state,  and  such  service  shall  in  all  respects  be  held 
legal  and  valid. 

Sec.  6.  The  tax  provided  for  by  this  act  shall  be  in  addition 
to  all  other  taxes  levied  by  law.    Sub-division  36,  of  Article  5049, 


4 


380  '  Taxation  in  Texas.  < 

Revised  Statutes  of  1895,  and  any  existing  statute  imposing  a  tax 
upon  the  gross  passenger  earnings  of  railroads,  is  hereby  re- 
pealed. 

Sec.  7 .  The  tax  imposed  by  this  act  shall  not  be  levied  upon 
or  collected  from  any  person,  firm,  association,  corporation,  or  re- 
ceiver owning,  operating,  managing  or  controlling  any  line  of 
railroad  in  this  state  after  such  person,  firm,  association,  cor- 
poration or  receiver  shall  have  paid  the  tax  upon  its  intangible 
assets  as  provided  for  in  an  Act  of  the  Twenty-ninth  Legisla- 
ture entitled  "An  act  for  the  taxation  of  the  intangible  assets  of 
certain  corporations,  and  to  provide  for  the  creation  of  a  state 
tax  board  for  the  valuation  of  such  intangible  assets,  and  for 
the  distribution  of  said  valuation  for  local  taxation,  and  for  the 
assessment  of  said  assets,  and  the  levy  and  collection  of  taxes 
thereon,"  while  the  same  may  be  in  force  and  effect.  Acts  1905, 
pp.  336  to  338. 

§  684.     Exemption  I.  &  G.  N.  R.  R.  Co. 

The  lands  granted  to  the  I.  &  G.  N.  R.  R.  Co.,  under  act  of 
March  10,  1875,  are  exempt  from  taxation  for  the  period  men- 
tioned in  the  act,  even  by  counties,  cities  or  towns  which  had 
aided  by  the  donation  of  lands  in  the  construction  of  that  com- 
pany's road.  County  of  Anderson  v.  John  W.  Kennedy,  58  Tex. 
617. 

The  Act  of  March  10,  1875,  creating  an  exemption  from  taxa- 
tion, known  as  the  compromise  act,  was  for  the  relief  of  the  In- 
ternational Railroad,  and  both  the  language  and  intent  of  that 
law  were  to  exempt  that  road  from  taxation  for  the  period  men- 
tioned in  the  act,  except  as  to  county  taxes  in  such  counties  as 
had  donated  their  bonds  to  aid  in  its  construction. 

The  compromise  act  of  March  10,  1875,  was  intended  to  re- 
strict the  exemption  from  taxation  of  property  belonging  to  the 
consolidated  company  to  such  property  as  it  held  under  charter 
originally  granted  to  the  International  Railroad  Company,  and 
that  the  benefits  otherwise  extended  to  the  consolidated  company 
should  be  for  and  on  account  of  acts  which  the  International 
Company  had  already  performed,  under  its  charter,  or  such  as 
the  consolidated  company  might  perform  after  the  date  of  the 
compromise  act  under  that  chapter  or  act. 


I 


Railroads.  381 

The  compromise  act  of  March  10,  1875,  limits  the  exemption 
in  favor  of  counties  and  towns,  to  such  as  had  donated  lands  to 
aid  in  the  construction  of  the  International  Railroad. 

Constitutional  Law.— The  acts  of  August  5,  1870,  and  of 
March  10,  1875,  were  not  by  reason  of  their  exemptions  of  prop- 
erty from  taxation  violative  of  the  constitution  then  in  force. 

Taxation. — The  act  of  March  10,  1875,  known  as  the  compro- 
mise act,  created  a  valid  and  binding  contract  sustained  by  a  val- 
uable consideration  for  the  exemption  of  property  from  taxation, 
and  was  irrepealable.  Cooley  on  Taxation,  52-56;  Humphrey  v. 
Pegues,  16  Wall.  249;  Tomlinson  v.  Branch,  15  Wall.  460,  cited 
and  followed.  The  I.  &  G.  N.  Ry.  Co.  v.  Anderson  County,  59 
Tex.  654. 

Exemption  from  taxation  by  act  of  legislature  for  good  con- 
sideration, of  property  owned  or  to  be  owned  by  a  railroad  com- 
pany or  its  successors,  attaches  to  the  property,  and  can  not  be 
withdrawn  for  failure  to  faithfully  exercise  corporate  powers,  in 
the  absence  of  provision  for  forfeiture.  International  &  G.  N. 
Ry.  Co.  V.  State,  12  S.  W.  685,  75  Tex.  356. 

§  685.     Exemptions  of  property — Pleadings. 

Act  of  Aug.  5,  1870,  incorporating  the  I.  R.  Co.,  granted  it 
bonds  of  the  state,  and  exempted  its  property  from  taxation  for 
five  years.  The  company  consolidated  with  the  H.  &  G.  N.  R. 
Co.,  and  afterwards  act  March  10,  1875,  expressly  recognizing 
the  consolidation,  substituted  for  the  bonds  certain  lands,  and 
exempted  from  taxation  for  twenty-five  years  the  company  and 
its  successors  and  assigns  "and  its  and  their  capital  stock,  rights, 
franchises,  railroads  constructed  and  to  be  constructed  pursuant 
to  act  August  5,  1870,  and  this  act,  rolling  stock,  and  all  other 
property"  then  or  thereafter  to  be  owned  or  possessed  by  it  or 
its  successors  in  virtue  of  act  August  5,  1870;  but  the  act  further 
provided  that  the  exemption  should  not  apply  to  the  lands  or  rail- 
roads which  at  the  time  of  the  consolidation  belonged  to  the 
H.  &  G.  N.  R.  Co.,  or  which  had  since  been  or  might  thereafter 
be  constructed  or  acquired  under  its  charter,  and  that  the  act 
should  not  exempt  any  lands  to  which  the  consolidated  company 
might  be  entitled  by  virtue  of  the  charter  of  the  H.  &  G.  N.  R. 
Co.,  or  the  franchises,  roadbed,  rolling  stock,  or  any  property  ac- 
quired or  thereafter  to  be  acquired  by  virtue  of  the  charter  of 


382  Taxation  in  Texas. 

the  H.  &  G.  N.  R.  Co.  Held,  that  a  petition  to  enjoin  the  col- 
lection of  taxes  on  money  earned  by  the  consolidated  company, 
which  alleged  that  the  money  was  earned  by  the  consolidated  com- 
pany, and  not  acquired  by  virtue  of  the  charter  of  the  H.  &  G. 
N.  R.  Co.,  and  was  therefore  exempt  from  taxation,  was  demur- 
rable, since  the  averment  might  be  true,  and  still  the  money 
might  have  been  earned  by  the  operation  of  the  consolidated 
company  of  the  line  of  railroad  constructed  by  it  in  accordance 
with  the  charter  of  the  H.  &  G.  N.  R.  Co.,  in  which  case  it  would 
not  be  exempt.  Pleasants,  J.,  dissenting,  Campbell  v.  Wiggins, 
20  S.  W.  730,  2  Tex.  Civ.  App.  1 ;  Campbell  v.  Rivirie,  22  S.  W. 
993. 

§  686.     Assessment  as  to  bridges  as  roadbed. 

Where  the  state  comptroller  has  instructed  the  assessor  not 
to  tax  the  railroad  bridges  separately,  but  to  include  all  bed 
as  railroad,  whether  built  on  ground  or  bridges,  and  a  railroad 
company  has  returned  a  bridge  on  its  line  of  road  as  so  much 
mileage  of  railroad,  the  board  of  equalization  can  not  order  the 
assessor  to  place  the  bridge  on  the  unrendered  list  as  a  bridge, 
at  a  greater  valuation,  since  Rev.  St.,  Art.  4713,  j^rovides  that 
the  assessor  shall  follow  the  instructions  of  the  comptroller. 
Cook  V.  G.H.&  S.  A.  Ry.  Co.,  24  S.  W.  544,  5  Tex.  Civ.  App. 
644. 

§  687.     Improper  rendition — Double  assessment. 

Where  the  property  of  a  railroad  company  in  a  city  is  rendered 
for  taxation  by  the  company's  agent,  the  trackage  being  rendered 
separate  from  other  real  estate  owned  by  the  company  in  the  city, 
and  the  valuation  of  each  being  made  distinct  items,  which  was 
followed  by  subsequent  assessments,  there  is  not  a  double  assess- 
ment. 

Where  the  property  of  a  railroad  in  a  city  is  rendered  for  taxa- 
tion by  its  agent  in  a  form  contrary  to  the  statute,  and  the  form 
and  subsequent  years,  the  company  can  not  take  advantage  of  the 
want  of  statutory  form  in  the  rendition.  Galveston  &  W.  Ry. 
Co.  V.  City  of  Galveston,  77  S.  W.  269,  33  Tex.  Civ.  App.  384. 

§  688.     Evidence  of  payment. 

In  an  action  by  a  railroad  company  to  restrain  a  tax  collector 
from  selling  certain  property  to  satisfy  taxes  of  a  certain  year, 


Railroads,  383 

alleged  to  be  unpaid,  the  answer  averred  that  the  "Proportionate 
amount  of  plaintiff's  rolling  stock"  had  not  been  entered  on  the 
assessment  rolls,  and  that  the  recital  in  the  receipt  held  by  plain- 
tiff, that  the  taxes  on  the  rolling  stock  had  been  paid,  was  a  mis- 
take. The  evidence  showed  that  plaintiff  rendered  to  the  as- 
sessor in  the  proper  form  a  list  of  its  property  subject  to  taxation 
in  the  county  for  that  year;  that  this  rendition,  excepting  the 
valuation  of  certain  lands,  was  accepted  by  the  county  board  of 
equalization;  that  the  list  contained  two  items,  the  second  of 
which  showed  the  valuation  of  the  "railway  and  appurtenances," 
that,  attached  to  this  list,  was  a  slip,  showing  the  different  pieces 
of  property  constituting  the  second  item,  among  which  was  a  val- 
uation of  the  "proportionate  amount  of  rolling  stock  furnished 
by  the  comptroller."  The  receipt  of  the  assessor  was  also  put 
in  evidence,  showing  the  payment  by  plaintiff  of  its  state  and 
county  taxes  for  that  year,  and  stating  that  a  specified  sum  was 
for  the  proportionate  amount  of  rolling  stock.  Held,  that  the 
evidence  plainly  showed  that  the  taxes  on  "the  proportionate 
amount  of  rolling  stock"  had  been  paid.  Gillespie  v.  Gulf  C.  & 
S.  F.  Ry.  Co.,  18  S.  W.  474. 


CHAPTER  XXXVII. 


LICENSE  AND  OCCUPATION  TAX. 


Sec.  Sec. 

689.  One-half  State  tax.  704. 

690.  Tax  shall  be  equal  and  uni- 
form. 

691.  Levy  for  1900.  705. 

692.  Cities  of  1,900  inhabitants  oi 

over      incorporated      undev       706. 
general  law  shall  have  pow- 
er to  levy  and  collect  occu-      707. 
pation  tax.  708. 

693.  Occupations  that  are  subject      709. 

to  taxation.  710. 

694.  Occupation  tax — Liabilities.  711. 

695.  Power  of  city  council  to  pro- 

vide for  assessing  taxes,  712. 
etc. 

696.  Collection  of  license  tax,  etc.       713. 

697.  Act  of  30th  Legislature  pro- 

viding for  the  levy  of  occu-  714. 
pation  taxes  on  certain  oc-  715. 
cupations. 

698.  Repealing    taxes    on    certain       716. 

occupations. 

699.  Act  30th  Legislature  provid-      717. 

ing  occupation  tax  on  deal-       718. 
ers  in  malt  liquors  in  local 
option  districts.  719. 

700.  Act    30th    Legislature   in   re- 

gard to  license  and  regulat-  720. 
ing  sale  of  intoxicating  721. 
liquors. 

701.  Relating  to   the   payment  of      722. 

certain  occupation  taxes  for 
remainder  of  1907.  723. 

702.  Occupation  tax  upon  persons 

engaged  in  the  business  of  724. 
dealing  in  unearned  wages  725. 
of  another.  726. 

703.  Tax  on  dealers  in  non-intox-       727. 

icating  malt  liquors. 


Occupation  tax  on  soliciting 
orders  in  local  option  dis- 
tricts. 

Refunding  unearned  liquor 
dealer's  license. 

Cannon  crackers  or  toy  pis- 
tols. 

Levy — S  ufficiency. 

Must  show  levy  of  tax. 

Not  liable — When. 

Occupation  not  property. 

Courts  cannot  interfere — 
When. 

Billiard  table  must  be  kept 
for  profit. 

Temporary  closing  does  not 
forfeit — Because — When. 

Occupation  and  privileges. 

Telegraph  Company — Inter- 
state commerce. 

State  must  first  fix  the  tax 
before  city  can  tax. 

Photograph  gallery. 

Lightning  rod  agents— Inter- 
state commerce. 

Foreign  corporation — Inter- 
state commerce. 

Commercial  travelers. 

Keeping  pool-table  without 
license. 

Fine  for  violating  license 
law. 

Liquor  property  of  firm  n'* 
defense. 

"Vender  of  medicine. 

Barber. 

Oil  producers. 

Indictment  not  bad  for  du- 
plicity. 


Railroads.  385 

Sec.  Sec. 

728.  Letting  wagon  for  hire.  733.  Wild  west  shows. 

729.  Interstate  commerce.        '  734.  Local  option — Sale  of  liquors. 

730.  City    ordinance — Vehicle   not  735.  Banks — Uniformity    of    taxa- 

taxed  by  State — Void.  tion. 

731.  Social  club.  736.  Occupation — Flying-jenny. 

732.  Real  estate  agent  can  collect      737.  Suflaciency  of  information. 

commission — When. 

§  689.     One-half  state  tax. 

The  occupation  tax  levied  by  any  county,  city  or  town,  for  any 
year,  on  persons  or  corporations  pursuing  any  profession  or  busi- 
ness shall  not  exceed  one-half  of  the  tax  levied  by  the  state  for 
the  same  period  on  such  profession  or  business.  St.  Const.,  1, 
Art.  8. 

§  690.     Tax  shall  be  equal  and  uniform. 

All  occupation  taxes  shall  be  equal  and  uniform  upon  the  same 
class  of  subjects  within  the  limits  of  the  authority  levying  the 
tax.    St.  Const.,  Sec.  2,  Art.  8. 

A  city  ordinance  authorizing  council  to  impose  a  tax  on  indi- 
viduals having  stalls  for  selling  meat.  The  tax  was  collected  only 
on  butchers  selling  meat  at  private  stalls,  but  not  from  butchers 
renting  stalls  from  city.  This  section  is  as  binding  in  cases  of 
occupation  taxes  levied  by  the  municipality  as  well  as  the  state. 
And  the  prohibition  of  unequal  taxes  applies  to  collections  as  well 
as  to  the  levy.  HoeHing  v.  City  of  San  Antonio,  85  Tex.  229, 
20  S.  W.  86. 

Act  of  1881  imposing  a  tax  of  two  dollars  per  mile  on  every 
firm  or  person  running  palace  cars  owned  by  the  railroad  com- 
panies in  the  state,  is  not  a  tax  on  property  which  must  be  taxed 
according  to  its  value.  Nor  is  it  a  tax  on  persons  which  must  be 
uniform  on  the  same  class  of  subjects.  It  is  an  occupation  tax. 
A  tax  imposed  on  one  running  a  sleeping  car  over  the  railroad 
of  another,  when  the  same  law  exempts  from  taxation  the  act  of 
running  same  kind  of  cars  over  the  road  of  the  car  owner  vio- 
lates this  section.    Pullman  Palace  Car  Co.  v.  State,  64  Tex.  275. 

The  twenty-fifth  section  of  the  occupation  tax  law  of  the  25th 
Legislature  violates  this  section,  because  it  exempts  deaf,  dumb 
and  wounded  soldiers.  Ex  parte  Jones,  38  Cr.  App.  482,  43  S. 
W.  513. 


25 


386  Taxation  in  Texas. 

Act  of  the  25th  Legislature  imposing  an  occupation  tax  on  cot- 
ton buyers,  but  exempting  such  as  pay  an  occupation  tax  as  mer- 
chants, violates  this  section.  Poteet  v.  State,  53  S.  W.  869,  41 
Tex.  Crim.  App.  268. 

The  occupation  tax  law  of  the  25th  Legislature  which  allowed 
a  merchant  to  become  a  cotton  buyer  on  payment  of  a  less  tax 
than  required  of  other  cotton  buyers  violates  this  section.  Rainey 
V.  State,  53  S.  W.  882. 

The  constitutional  limitation  that  "taxation  shall  be  equal  and 
uniform  throughout  the  state"  is  not  violated  by  the  act  of  April 
22,  1871,  imposing  an  occupation  tax  upon  every  person  or  firm 
dealing  in  stocks  or  bills  of  exchange  in  any  city  or  town  ex- 
ceeding five  thousand  in  population,  an  annual  tax  of  $250,  and 
upon  such  occupation  in  a  city  or  town  of  less  population,  fifty 
dollars.    Texas  Banking  and  Insurance  Co.  v.  State,  42  Tex.  636. 

Acts  Tex.  March  11,  1881,  and  April  4,  1881,  prohibiting  the 
occupation  of  selling  liquors  in  quantities  less  than  one  quart 
without  paying  the  tax  required  by  law,  and  without  license,  are 
not  unconstitutional,  because,  as  a  condition  precedent  to  engag- 
ing in  such  occupation,  they  require  the  tax  thereon  to  be  paid 
in  advance  for  the  term  of  a  year,  but  permit  the  tax  on  other 
occupations  to  be  paid  quarterly,  and  require  a  license  to  pursue 
such  occupation,  but  permit  others  to  be  pursued  without  a  li- 
cense. As  the  requirement  applies  to  all  the  persons  of  the  class 
engaged  in  such  occupation,  the  tax  is  "equal  and  uniform." 
Fahey  v.  State,  11  S.  W.  108,  27  Tex.  Crim.  App.  146. 

By  Acts  Sp.  Sess.  25th  Leg.,  p.  54,  Art.  5049,  Subd.  40,  a  mer- 
chant who  paid  an  occupation  tax  of  $3  where  his  purchases  were 
less  than  $2,000,  and  $300  where  they  were  $750,000  or  more, 
was  not  to  pay  a  special  license  required  of  peddlers,  $250  to  the 
state  and  $100  in  the  county,  for  sales  made  at  his  place  of  busi- 
ness, or  in  the  county  where  it  was  located.  Held,  that,  since  this 
gave  a  merchant  the  right  to  peddle  anywhere  in  his  county  by 
paying  less  than  the  $350  peddler's  license,  the  imposition  of 
$350  on  a  peddler  for  doing  the  same  thing  was  a  violation  of 
Const.,  Art.  9,  Sees.  1  and  2,  providing  that  taxation  shall  be 
equal  and  uniform,  and  that  taxes  of  occupation  shall  be  equal 
and  uniform  upon  the  same  class  of  subjects  within  the  limits  of 
the  authority  levying  the  tax.  Ex  parte  Overstreet,  46  S.  W.  825, 
39  Tex.  Crim.  App.  474;  Ex  parte  Jones,  43  S.  W.  513,  38  Tex. 


License  and  Occupation  Tax.  387 

Crim.  App.  482;  Poteet  v.  State,  53  S.  W.  869,  41  Tex.  Crim. 
App.  268;  Rainey  v.  State,  53  S.  W.  882,  41  Tex.  Crim.  App. 
254. 

§  691.     Levy  for  1900. 

That  there  shall  be  collected  by  the  state  annually  in  advance 
an  occupation  tax  on  all  persons  or  firms  pursuing  any  of  the 
following  occupations,  to-wit:  From  every  foot  peddler,  five 
dollars  in  each  county  in  which  he  peddles ;  from  every  peddler 
with  one  horse  or  one  pair  of  oxen,  the  sum  of  seven  dollars  and 
fifty  cents  in  the  county  where  he  peddles ;  from  every  peddler 
with  two  horses  or  two  pairs  of  oxen,  ten  dollars  in  each  county 
in  which  said  occupation  is  pursued;  from  every  peddler  with 
sail  or  other  boat  in  streams  along  coasts  or  bays  of  this  state, 
ten  dollars  in  each  county  in  which  said  occupation  is  pursued ; 
provided,  that  nothing  herein  contained  shall  be  so  construed  as 
to  include  traveling  vendors  of  literature  or  traveling  vendors  of 
poultry,  vegetables,  fruits  or  other  country  produce  exclusively, 
and  fruit  trees  exclusively. 

From  every  person  or  firm  who  peddles  out  clocks,  agricul- 
tural implements,  cooking  stoves  or  ranges,  wagons,  buggies, 
carriages,  surreys  and  other  similar  vehicles,  washing  machines 
and  churns,  an  annual  tax  of  two  hundred  and  fifty  dollars,  to 
be  paid  in  each  county  in  which  said  occupation  is  pursued ;  pro- 
vided, that  a  merchant  who  pays  an  occupation  tax  as  now  re- 
quired by  law  shall  not  be  required  to  pay  this  special  tax  for 
selling  the  articles  named  in  this  section  when  sold  in  his  place 
of  business. 

Every  county  in  this  state  where  any  of  said  occupations  are 
pursued  shall  be  entitled  to  collect  for  the  use  of  said  county 
one-half  of  the  amount  required  to  be  paid  to  the  state.  (Acts 
1899,  p.  201.)     Sayles  St.  (Sup.),  Art.  5049. 

The  fact  that  the  state  has  no  authority  to  enforce  the  law 
against  national  banks  does  not  make  it  void  for  the  want  of 
uniformity.  It  is  equal  and  uniform  on  the  same  class  of  sub- 
jects within  the  limits  of  the  authority  of  the  state  to  tax.  Brooks 
V.  State,  58  S.  W.  1033,  1034. 

Interest  is  not  allowable  on  taxes  from  the  respective  dates 
when  they  become  due,  but  from  the  date  of  the  judgment  hold- 
ing parties  liable  for  taxes.    Brooks  v.  State,  58  S.  W.  1035. 


388  Taxation  in  Texas. 

This  law  is  constitutional.    Mullinnix  v.  State,  60  S.  W.  768. 

Photography  is  not  a  mechanical  pursuit.  The  tax  is  not  lev- 
ied on  the  vocation  of  a  photographer  but  on  the  owner  of  a 
photographic  gallery.    Mullinnix  v.  State,  60  S.  W.  768. 

This  article  makes  it  the  duty  of  the  comptroller  to  collect  the 
tax  upon  the  gross  earnings  of  railroad  companies,  but  it  does 
not  make  it  his  duty  to  bring  suit  therefor.  Suits  must  be 
brought  in  the  name  of  the  state  and  by  its  principal  law  officer, 
the  attorney  general  or  some  other  law  officer  whose  duty  it  is 
to  represent  the  state  in  legal  proceedings.  Lewi'ight  v.  Love, 
95  Tex.  157,  65  S.  W.  1089. 

One  who  manufactures  and  sells  his  product  is  not  a  dealer 
within  the  meaning  of  this  law  and  is  not  taxable  as  such  a  deal- 
er.   Egan  V.  State,  68  S.  W.  273. 

§  692.  Cities  of  1,900  inhabitants  or  over  incorporated  under 
general  law  shall  have  power  to  levy  and  collect  occu- 
pation tax. 

The  city  council  shall  have  power  to  levy  and  collect  taxes, 
commonly  known  as  licences,  upon  trades,  professional  callings 
and  other  business  carried  on ;  and  upon  carriages,  hacks,  coaches, 
buggies,  drays,  carts,  wagons,  and  other  vehicles  used  in  said  city, 
when  the  same  are  for  public  use ;  and  each  and  every  person  and 
firm  engaging  in  the  following  trades,  professions,  callings  and 
business,  among  others,  shall  be  liable  to  pay  such  license  tax ; 
but  this  enumeration  shall  not  be  construed  to  deprive  the  city 
council  of  the  right  and  power  to  levy  and  collect  other  license 
taxes,  and  from  other  persons  and  firms,  under  the  general  au- 
thority herein  granted.     (lb.,  Sec.  83.) 

(1)  In  a  general  sense  a  license  is  an  official  permit  to  carry 
on  a  business  or  trade,  or  perform  other  acts  which  are  forbid- 
den by  law  except  to  persons  obtaining  such  permit.  It  also  may 
apply  to  occupations  not  otherwise  unlawful,  but  which  the  pub- 
lic welfare  may  require  to  be  under  some  restraint.  Hoefting  v. 
San  Antonio,  85  Tex.  228,  20  S.  W.  85. 

(2)  The  power  given  in  a  city  charter  to  license  does  not 
confer  a  power  to  tax ;  by  which  is  meant  the  power  to  take  from 
the  citizen  a  sum  for  the  support  of  the  government,  whether  it 
be  national,  state  or  municipal.    Id. 

(3)  The  constitution  provides  that  "all  occupation  taxes  shall 
be  equal  and  uniform  upon  the  same  class  of  subjects  within  the 


License  and  Occupation  Tax.  389 

limits  of  the  authority  levying  the  tax."  (Const.,  Art.  6,  Sec.  2.) 
This  is  as  binding  in  case  of  occupation  taxes  levied  by  a  munici- 
pal corporation  as  in  such  taxation  levied  by  the  state.     Id. 

(4)  Wheh  the  legislature  has  declared  that  an  occupation 
shall  be  taxed,  then,  and  not  before,  has  a  county,  town  or  city 
the  power  to  levy  a  tax  upon  such  occupation.  Id.  contra,  Hirsh- 
iield  V.  Dallas,  4  App.  C.  C,  Sec.  177 ;  City  of  Laredo  v.  Loury, 
4  App.  C.  C,  Sec.  320. 

(5)  A  municipal  tax  upon  butchers  vending  meat,  of  $75  per 
stall  per  annum,  and  collected  only  of  butchers  vending  meat  at 
private  stalls,  and  not  of  butchers  renting  stalls  from  the  city, 
is  a  violation  of  the  provision  of  the  constitution  requiring  equal 
taxation.  The  inhibition  applies  to  the  collection  equally  as  to 
the  levy  of  taxes.  Hoefling  v.  City  of  San  Antonio,  85  Tex.  228, 
20  S.  W.  85.    Sayles  R.  S.,  Art.  490. 

§  693.     Occupation  that  are  subject  to  taxation. 

Every  person  and  firm  engaged  in  selling  goods,  wares  and 
merchandise ;  every  person  and  firm  selling  liquor  in  quantities 
over  a  quart ;  every  person  and  firm  keeping  a  grog-shop,  tip- 
pling place,  barroom  or  drinking  saloon ;  every  person  or  firm 
keeping  a  place  where  spirituous  liquors,  wines,  cordials  or  beer 
are  sold  in  quantities  less  than  one  quart ;  every  person  or  firm 
keeping  a  billiard  table,  ball  alley,  or  nine  or  ten-pin  alley,  or  any 
similar  game ;  every  person  or  firm  keeping  a  tavern  or  hotel, 
oyster  shop,  oyster  saloon,  or  place  of  any  description  where 
eating  or  refreshments  are  furnished ;  every  person  or  firm  keep- 
ing a  livery  stable,  sale  stable,  feed  or  other  kind  of  stable ;  every 
person  or  firm  selling  goods,  wares  and  merchandise  at  public 
auction ;  every  person  or  firm  pursuing  the  occupation  of  real 
estate  broker  or  agent,  merchandise  or  cotton  broker,  or  com- 
mission business ;  every  person  or  firm  pursuing  the  occupation  of 
hawker  or  peddler  of  goods  or  any  article  whatever ;  every  per- 
son or  firm  keeping  a  brewery,  beer  shop  or  distillery,  or  fruit 
stand;  every  person  or  firm  keeping  a  storage  or  a  warehouse, 
or  engaging  in  compressing  cotton,  keeping  an  intelligence  office ; 
each  and  every  insurance  company  shall  also  be  liable  to  pay 
said  city  such  license  tax,  and  each  and  every  insurance  agent  in 
said  city  shall  likewise  be  subject  to  said  license  tax,  and  such 


390  Taxation  in  Texas. 

agent  shall  be  held  responsible  therefor,  and  for  each  association, 
corporation  or  company  of  which  he  is  agent.  (lb.,  Sec.  84.) 
Sayles  R.  S.,  Art.  491. 

§  694.     Occupation  tax — Liabilities. 

Each  and  every  firm  keeping  a  lumber,  wood  or  coal  yard,  or 
any  place  for  sale  of  the  articles  aforesaid,  or  building  material, 
shall  be  subject  to  said  license  tax,  and  all  other  persons  from 
whom  the  city  council  may  require  said  tax,  under  the  authority 
in  this  title  granted ;  provided  nothing  herein  contained  shall  in 
any  wise  prevent  or  restrain  the  city  council  from  collecting  the 
license,  and  each  license  tax  hereinbefore  provided  for  by  this 
title ;  each  establishment  shall  be  liable  to  said  license  tax ;  and 
any  person  or  firm  pursuing  occupations,  business  avocation,  busi- 
ness or  calling.     (lb..  Sec.  85.)     Sayles  R.  S.,  Art.  492. 

§  695.     Power  of  city  council  to  provide  for  assessing,  taxes, 
etc. 

The  city  council  shall  have  power  to  provide  by  ordinance  for 
the  assessing  and  collecting  of  the  taxes  aforesaid,  and  to  de- 
termine when  taxes  shall  be  paid  by  corporations,  and  when  by 
the  individual  corporators ;  provided,  no  tax  shall  be  levied  un- 
less by  consent  of  two-thirds  of  the  aldermen  elected.  (lb., 
Sec.  86.)     Sayles  R.  S.,  Art.  493. 

§  696.     Collection  of  license  tax,  etc. 

The  license  tax  shall  be  collected  by  the  assessor  and  collec- 
tor and  shall  be  paid  to  that  officer  by  each  and  every  person  and 
firm  owing  such  license  and  before  engaging  in  any  trade,  pro- 
fession, business,  calling,  avocation  or  occupation  subject  to  said 
tax ;  and  if  any  person  shall  engage  in  any  business,  calling,  avo- 
cation or  occupati'on  which  by  an  ordinance  of  the  said  city  is 
subject  to  a  license  tax,  without  first  having  obtained  said  license, 
he,  she  or  they  shall,  on  conviction  before  the  mayor  or  recorder's 
court,  be  liable  to  imprisonment  or  a  fine  of  ten  dollars,  or  both 
imprisonment  and  such  fine,  shall  apply  to  all  persons  owning  any 
license  and  failing  to  pay  the  same ;  provided,  that  the  city  coun- 
cil may  collect  said  license  tax  by  suit  in  any  court  having  juris- 
diction, under  such  rules  and  regulations  as  they  may  provide 
by  ordinance;  said  taxes,  commonly  known  as  licenses  laid  as 
herein  provided,  shall  not  be  construed  to  be  a  tax  on  property 
within  the  meaning  of  Article  496  or  any  other  article  of  this 
title.     (lb.,  Sec.  87.) 


License  and  Occupation  Tax.  391 

(1)  The  legislature  never  having  conferred  upon  the  city  of 
Austin  the  powder  to  exempt  any  property  which  it  was  author- 
ized to  tax,  a  contract  with  a  private  company  exempting  it 
from  taxation  in  consideration  of  its  establishing  gas  works  and 
furnishing  the  city  with  gas  at  a  reduced  price,  in  so  far  as  it 
attempted  to  give  the  exemption  claimed  is  void.  This  would  vio- 
late the  rule  as  to  uniformity.  Austin  v.  Gas  Co.,  69  Tex.  180, 
7  S.  W.  200. 

(2)  While  the  city  may  enforce  the  payment  of  a  license  tax 
by  a  suit,  the  payment  of  interest  on  the  amount  due  can  not 
be  enforced  in  such  suit.  Heller  v.  City  of  Alvarado,  20  S.  W. 
1003,  1  Tex.  Civ.  App.  409.    Sayles  R.  S.,  Art.  494. 

§  697.  Act  of  30th  legislature  providing  for  the  levy  of  occupa- 
tion taxes  on  certain  occupations. 

Section  1.  Each  and  every  individual,  company,  corporation  or 
association  doing  an  express  business  by  railroad  or  water,  in  this 
state,  shall,  on  or  before  the  first  day  of  March,  1908,  and  annu- 
ally thereafter,  make  a  report  to  the  comptroller  of  public  ac- 
counts under  oath,  of  the  individual  or  of  the  president,  treasurer 
or  superintendent  of  such  company,  corporation  or  association, 
showing  the  amount  of  gross  receipts  from  charges  and  freights 
within  this  state  paid  to  or  collected  by  such  individual,  company, 
corporation  or  association  on  account  of  money,  goods,  merchan- 
dise or  other  character  of  freight  carried  within  this  state  during 
the  twelve  months  next  preceding.  Said  individuals,  companies, 
corporations  or  associations,  at  the  time  of  making  said  report, 
^hall  pay  to  the  treasurer  of  the  state  of  Texas  an  occupation  tax 
for  the  year  beginning  on  said  date,  equal  to  two  and  one-half 
per  cent  of  said  gross  receipts  as  shown  by  said  report. 

Sec.  2.  Each  and  every  individual  company,  corporation  or  as- 
sociation owning,  operating,  controlling  or  managing  any  tele- 
graph lines  in  this  state  or  owning,  operating,  controlling  or  man- 
aging what  is  known'  as  wireless  telegraph  stations,  for  the  trans- 
mission of  messages,  or  aerograms,  and  charging  for  the  trans- 
mission of  such  messages  or  aerograms,  shall,  on  or  before  the 
first  day  of  July,  1907,  and  quarterly  thereafter,  make  a  report 
to  the  comptroller  of  public  accounts  under  oath  of  the  indi- 
vidual, or  of  the  president,  treasurer  or  superintendent  of  such 
companies,  corporation  or  association  showing  the  gross  amount 


392  Taxation  in  Texas. 

received  from  all  business  within  this  state  during  the  preceding 
quarter  in  the  payment  of  telegraphic  or  aerogram  charges,  in- 
cluding the  amount  received  on  full  rate  messages  and  aerograms 
and  half  rate  messages,  and  aerograms,  and  from  the  lease  or  use 
of  any  wires  or  equipment  within  the  state  during  said  quarter. 
Said  individuals,  companies,  corporations  and  associations,  at 
the  time  of  making  said  report,  shall  pay  to  the  treasurer  of  the 
state  of  Texas  an  occupation  tax  for  the  quarter  beginning  on  said 
date  equal  to  two  and  three-fourths  per  cent  of  said  gross  re- 
ceipts, as  shown  by  said  report. 

Sec.  3.  Eiich  and  every  individual,  company,  corporation,  or 
association,  owning,  operating  or  managing  or  controlling  any 
gas,  electric  light,  electric  power  or  water  works  or  water  and 
light  plant,  within  this  state  and  charging  for  gas,  electric  lights, 
electric  power  or  water,  shall  on  or  before  the  first  day  of  July, 
1907,  and  quarterly  thereafter,  make  a  report  to  the  comptroller 
of  public  accounts  under  oath  of  the  individual  or  of  the  presi- 
dent, treasurer  or  superintendent  of  such  company,  corporation 
or  association,  showing  the  gross  amount  received  from  the  busi- 
ness done  within  this  state  in  the  payment  of  charges  for  gas,  elec- 
tric lights,  electric  power  and  water  for  the  quarter  next  preced- 
ing. Said  individual,  company,  corporation  or  association,  at  the 
time  of  making  said  report  for  any  town  or  city  of  ten  thousand 
inhabitants  and  less  than  twenty-five  thousand  inhabitants,  shall 
pay  to  the  treasurer  of  the  state  of  Texas  an  occiif^ation  tax  for 
the  quarter  beginning  on  said  date,  equal  to  one-fourth  of  one 
per  cent  of  said  gross  receipts,  as  shown  by  said  report,  and  for 
any  town  or  city  of  twenty-five  thousand  inhabitants  or  more,  the 
said  individual,  company,  corporation  or  association,  at  the  time 
of  making  said  report,  shall  pay  to  the  treasurer  of  the  state  of 
Texas  an  occupation  tax  for  the  quarter  beginning  on  said  date, 
an  amount  equal  to  one-half  of  one  per  cent  of  said  gross  re- 
ceipts as  shown  by  said  report.  Provided,  that  nothing  herein  shall 
apply  to  any  gas,  electric  light,  electric  power  or  water  works, 
or  water  and  light  plant  within  this  state,  owned  by  any  city  or 
town. 

Sec.  4.  Each  and  every  individual,  company,  corporation  or 
association,  owning,  operating,  managing  or  controlling  any  col- 
lecting agency,  commercial  agency,  or  commercial  reporting 
credit  agency  within  this  state,  and  charging  for  collections  made, 


License  and  Occupation  Tax.  393 

or  business  done  or  reports  made,  shall,  on  or  before  the  first  day 
of  July,  1907,  and  quarterly  thereafter,  make  a  report  to  the 
comptroller  of  public  accounts  under  oath  of  the  individual  or  of 
the  president,  treasurer,  or  superintendent  of  such  company,  cor- 
poration or  association,  showing  from  business  done  within  this 
state  the  gross  amount  received  in  the  payment  of  charges  for 
collections  made  and  business  done  and  reports  made  during  the 
quarter  next  preceding.  Such  individuals,  companies,  corpora- 
tions or  associations  at  the  time  of  making  said  report,  shall  pay 
to  the  treasurer  of  the  State  of  Texas  an  occupation  tax  for 
the  quarter  beginning  on  said  date  equal  to  one-half  of  one  per 
cent  of  said  gross  receipts  as  shown  by  said  report. 

Sec.  5.  Each  and  every  individual,  company,  corporation  or 
association,  residing  without  the  state  of  Texas,  or  incorporated 
under  the  laws  of  any  other  state  or  territory,  or  nation,  and 
owning  stock  cars,  refrigerator  and  fruit  cars  of  any  kind,  tank 
cars  of  any  kind,  coal  cars  of  any  kind,  furniture  cars  or  common 
box  cars  and  flat  cars,  and  leasing,  renting  or  charging  mileage 
for  the  use  of  such  cars,  within  the  state  of  Texas  shall,  on  or 
before  the  first  day  of  July,  1907,  and  quarterly  thereafter,  make 
a  report  to  the  comptroller  of  public  accounts  under  oath  of  the 
individual,  or  of  the  president,  treasurer  or  superintendent  of  such 
company,  corporation  or  association,  showing  the  amount  of  gross 
receipts  from  such  rentals,  or  mileage,  or  from  other  sources  of 
revenue  received  from  business  done  within  this  state,  during  the 
quarter  next  preceding.  Said  individuals,  companies  and  cor- 
porations, and  associations,  at  the  time  of  making  said  report, 
shall  pay  to  the  treasurer  of  the  state  of  Texas  an  occupation 
tax  for  the  quarter  beginning  on  said  date  equal  to  three  per  cent 
of  said  gross  receipts  as  shown  by  said  report. 

Sec.  6.  Each  and  every  individual,  company,  corporation  or 
association,  whether  incorporated  under  the  laws  of  this  state  or 
of  any  other  state  or  territory,  or  of  the  United  States,  or  of  any 
foreign  nation,  which  owns,  manages,  operates,  leases  or  rents 
any  pipe  line  or  pipe  lines  within  this  state,  whether  such  pipe  line 
or  pipe  lines  be  used  for  transmission  of  oil,  natural  or  artificial 
gas,  whether  such  oil  or  gas  be  for  illuminating  or  fuel  purposes, 
or  for  steam,  for  heat  or  power,  or  for  any  other  purpose,  and 
whether  such  pipe  line  or  pipe  lines  be  used  for  the  transmission 
of  articles  by  pneumatic  or  other  power,  shall,  on  or  before  the 


394  Taxation  in  Texas. 

first  day  of  July,  1907,  and  quarterly  thereafter,  pay  to  the  state 
of  Texas  an  occupation  tax  equal  to  two  per  cent  of  its  gross 
receipts  if  such  pipe  line  or  pipe  lines  lie  wholly  within  this 
state ;  and  if  such  pipe  line  or  pipe  lines  lie  partly  within  and 
partly  without  the  state,  such  individuals,  companies,  corpora- 
tions and  associations  shall  pay  a  tax  equal  to  two  per  cent  of 
such  proportion  of  its  gross  receipts,  as  the  length  of  such  line 
or  lines  within  the  state  bears  to  the  whole  length  of  such  line 
or  lines ;  provided,  that  if  satisfactory  evidence  is  submitted  to 
the  comptroller  of  public  accounts  at  any  time  prior  to  the  date 
fixed  by  this  section  for  the  payment  of  the  tax  herein  imposed, 
that  any  other  proportion  more  fairly  represents  the  proportion 
which  the  gross  receipts  of  any  pipe  line  or  pipe  lines  for  any 
quarter,  within  this  state  bears  to  its  total  gross  receipts,  it  shall 
be  his  duty  to  collect  for  such  quarter  from  every  such  pipe  line 
or  pipe  lines  a  tax  equal  to  such  other  proportion  of  two  per 
cent  of  its  total  gross  receipts. 

For  the  purpose  of  determining  the  amount  of  such  tax,  the 
individual  or  the  president,  treasurer  or  superintendent  of  such 
company,  association  or  corporation,  shall,  on  or  before  the  first 
day  of  July,  1907,  and  quarterly  thereafter,  make  a  report  to  the 
comptroller  of  public  accounts,  under  oath  of  the  individual,  or 
of  the  president,  treasurer  or  superintendent  of  such  company, 
corporation  or  associaJ:ion,  showing  the  gross  receipts  of  such 
pipe  line  or  pipe  lines  from  every  source,  whatsoever,  for  the 
quarter  next  preceding,  and  shall  immediately  pay  to  the  state 
treasurer  an  occupation  tax  for  the  quarter  beginning  on  said 
date,  calculated  on  the  gross  receipts  so  reported. 

Sec.  7.  Every  sleeping  car  company,  palace  car  company,  or 
dining  car  company,  doing  business  in' this  state,  and  each  indi- 
vidual, company,  corporation  or  association  leasing  or  renting, 
owning,  controlling  or  managing  any  palace  cars,  dining  cars, 
or  sleeping  cars  within  this  state  for  the  use  of  the  public,  for 
which  any  fare  is  charged,  shall,  on  or  before  the  first'  day  of 
July,  1907,  and  quarterly  thereafter,  report  to  the  comptroller  of 
public  accounts,  under  oath  of  the  individual,  or  of  the  presi- 
dent, treasurer  or  superintendent  of  such  company,  corporation 
or  association,  showing  the  amount  of  gross  receipts  earned  from 
any  and  all  sources  whatever  within  this  state,  except  from  re- 
ceipts derived  from  buflfet  service,  during  the  quarter  next  pre- 


License  and  Occupation  Tax.  395 

ceding.  Said  individuals,  companies,  corporations  and  associa- 
tions, at  the  time  of  making  said  report  shall  pay  to  the  treasurer 
of  the  state  of  Texas  an  occupation  tax  for  the  quarter  begin- 
ning on  said  date  equal  to  five  per  cent  of  said  gross  receipts 
as  shown  by  said  report. 

The  tax  herein  provided  for  shall  be  in  lieu  of  all  other  taxes 
now  levied  upon  sleeping  car,  palace  car  or  dining  car  companies, 
except  the  tax  of  25  cents  on  the  one  hundred  dollars  of  the 
capital  stock  of  such  car  companies,  as  provided  by  the  act  of  the 
Twenty-third  Legislature,  Chapter  102. 

Sec.  8.  Every  life,  fire,  fire  and  marine,  marine,  and  marine 
inland  insurance  company,  and  every  life  and  accident,  life  and 
health,  accident,  credit,  title,  steam  boiler,  live  stock,  fidelity,  guar- 
anty, surety  and  casualty  company  and  all  other  insurance  com- 
panies doing  business  in  this  state,  except  fraternal  life  and  do- 
mestic benevolent  life  insurance  companies,  at  the  time  of  filing 
its  annual  statement,  shall  report  to  the  commissioner  of  insur- 
ance and  banking  the  gross  amount  of  premiums  received  in  the 
state,  upon  property  located  in  the  state,  and  from  persons  resid- 
ing in  this  state,  during  the  preceding  year,  and  each  of  such 
companies  shall  pay  an  annual  tax  upon  such  gross  premium  re- 
ceipts as  follows :  Each  life  insurance  company  shall  pay  a  tax 
of  three  per  cent  of  such  gross  premiums ;  all  other  companies 
enumerated  above  shall  pay  a  tax  of  two  per  cent  of  such  gross, 
premiums ;  provided,  that  any  company  doing  life  insurance  busi- 
ness in  connection  with  any  other  class  of  insurance  enumerated 
shall  pay  the  same  tax  upon  the  gross  receipts  from  life  insur- 
ance of  a  company  conducting  a  purely  life  insurance  business ; 
and  the  gross  premium  receipts  are  understood  to  be  a  premium 
receipt  reported  to  the  commissioner  of  insurance  and  banking 
by  the  insurance  companies  upon  the  sworn  statement  of  two 
principal  officers  of  such  companies. 

Upon  receipt  by  him  of  sworn  statements  showing  the  gross 
premium  receipts  by  such  companies,  the  commissioner  shall  cer- 
tify to  the  state  treasurer  the  amount  of  taxes  due  by  each  com- 
pany, which  tax  shall  be  paid  to  the  state  treasurer  for  the  use  of 
the  state,  on  or  before  the  first  of  March  following,  whose  re- 
ceipt shall  be  evidence  of  the  payment  of  such  taxes,  and  no  in- 
surance company  shall  receive  a  permit  to  do  business  in  this 
state  until  such  taxes  are  paid.     But  any  life  insurance  company 


396  Taxation  in  Texas. 

that  shall  comply  with  the  terms  and  provisions  of  the  act  passed 
by  the  regular  session  the  Thirtieth  Legislature  of  this  state, 
approved  April  24,  1907,  requiring  the  investment  and  deposit 
of  75  per  cent  of  the  reserve  apportioned  on  account  of  policies 
of  insurance  written  upon  the  lives  of  citizens  of  Jhis  state,  shall 
pay  an  annual  tax  of  one  per  cent  upon  its  gross  receipts  so  long 
as  said  investments  and  deposits  are  made  as  provided  in  said 
acts.    And  that  if  any  such  insurance  company  shall  have  as  much 
as  one-fourth  of  its  entire  assets,  as  shown  by  said  sworn  state- 
ment, invested  in  any  or  all  of  the  following  securities:   real  es- 
tate in  the  state  of  Texas,  bonds  of  this  state  or  of  any  county, 
incorporated  city  or  town  of  this  state,  or  other  property  in  this 
state  in  which  by  law  such  companies  may  invest  their  funds, 
then  the  annual  tax  of  any  such  companies  shall  be  one  per  cent 
of  its  said  gross  premium  receipts ;  and  if  any  such  company  shall 
invest  as  aforesaid  as  much  as  one-half  of  its  assets,  then  the 
annual  tax  of  such  company  shall  be  one-half  of  one  per  cent  of 
its  gross  premium  receipts,  as  above  defined,  and  provided  fur- 
ther that  no  occupation  tax  shall  be  levied  on  insurance  compa- 
nies herein  subjected  to  a  gross  premium  receipt  tax,  by  any 
county,  city  or  town.     Provided,  also,  that  all  mutual  fraternal 
benevolent  associations,  now  or  hereafter  doing  a  life  insurance  or 
a  life  and  accident  insurance  business  in  this  state  under  the  > 
lodge  system  and  on  the  assessment  plan,  whether  organized  un- 
der the  laws  of  this  state,  or  a  foreign  state  or  country,  are  ex- 
empt from  the  provisions  of  this  section. 

Any  life  insurance  company  heretofore  or  hereafter  engaged  in 
writing  policies  upon  the  lives  of  citizens  of  this  state  that  shall 
cease  writing  such  policies  of  insurance  but  shall  continue  to  be 
engaged  in  collecting  premiums  or  renewal  premiums  upon  such 
policies  shall  report  under  oath  annually  as  provided  above  to 
the  said  commissioner  of  insurance  of  this  state  the  gross  amount 
of  premiums  so  collected  and  shall  pay  to  the  state  thereon  the 
three  (3)  per  cent  gross  receipts  tax  above  provided  for.  And 
any  such  life  insurance  company  shall  constitute  and  appoint  the 
said  commissioner  of  insurance  of  this  state  its  duly  authorized 
agent  and  attorney  in  fact  for  the  purpose  of  accepting  service 
for  it  or  being  served  with  citation  in  any  suit  brought  against 
it  in  any  court  in  this  state  in  like  manner  as  is  provided  by  law 
for  companies  engaged  in  doing  every  character  of  insurance 


License  and  Occupation  Tax.  397 

business  in  this  state,  and  such  appointment  and  agency  shall  be 
continued  and  kept  in  force  so  long  as  such  company  continues 
to  collect  premiums  of  insurance  from  citizens  of  this  state,  and 
failure  to  make  such  report  and  pay  such  tax  or  to  make  and 
keep  up  the  appointment  of  the  agency  as  herein  provided  shall 
subject  such  company  to  a  penalty  for  each  year  of  $5,000  and 
in  addition  in  a  sum  equal  to  double  the  amount  of  such  tax  for 
such  year  which  penalty  may  be  recovered  by  the  state  in  a  suit 
brought  in  the  name  of  the  state,  under  the  direction  of  the  said 
commissioner  of  insurance  by  the  proper  officer  in  the  District 
Court  of  Travis  County. 

The  taxes  aforesaid  shall  constitute  all  taxes  and  license  fees 
collectible  under  the  laws  of  this  state  against  any  such  insurance 
companies,  and  no  occupation  or  other  taxes  shall  be  levied  on 
or  collected  from  any  insurance  company  by  any  county,  city  or 
town,  but  this  act  shall  not  be  construed  to  prohibit  the  levy  and 
collection  of  state,  county  and  municipal  taxes  upon  the  real  and 
personal  property  of  such  companies.  Provided,  that  this  shall 
not  relieve  agents  from  paying  an  occupation  tax.  Provided,  fur- 
ther, that  purely  co-operative  or  mutual  fire  insurance  companies 
carried  on  by  the  members  thereof,  solely  for  the  protection  of 
their  own  property  and  not  for  profit  shall  be  exempt  from  the 
provisions  of  this  bill. 

Sec.  9.  Each  and  every  individual,  company,  corporation  or 
association  created  by  the  laws  of  this  state  or  any  other  state 
or  nation,  which  shall  engage  in  his  own  name  or  in  the  name  of 
others,  or  in  the  name  of  its  representatives,  or  agents,  in  this 
state  in  the  business  of  wholesale  dealers  in  coal  oil,  naphtha, 
benzine  or  any  other  mineral  oils  refined  from  petroleum,  shall, 
on  or  before  the  first  day  of  July,  1907,  and  quarterly  thereafter, 
make  a  report  to  the  comptroller  of  public  accounts,  under  oath 
of  the  individual,  or  of  the  president,  treasurer  or  superintendent 
of  such  company,  corporation  or  association,  showing  the  gross 
amount  collected  and  uncollected  from  any  and  all  sales  made 
within  this  state  of  any  of  said  articles  during  the  quarter  next 
preceding.  Said  individuals,  companies,  corporations  and  asso- 
ciations, at  the  time  of  making  said  report,  shall  pay  to  the  treas- 
urer of  the  state  of  Texas  an  occupation  tax  for  the  quarter  be- 
ginning on  said  date  equal  to  two  per  cent  of  said  gross  receipts 
and  amount  uncollected  from  said  sales  as  shown  by  said  re- 
port. 


398  Taxation  in  Texas. 

A  wholesale  dealer  within  the  meaning  of  this  section  is  any 
individual,  company,  firm,  partnership,  corporation  or  associa- 
tion who  buys  any  of  the  articles  hereinbefore  mentioned  either 
in  his  own  name  or  in  the  name  of  others,  or  in  the  name  of  their 
representative  or  agent  and  sells  same  either  in  his  name  or  in 
the  name  of  others,  or  in  the  name  of  their  representatives  or 
agents,  to  any  person,  firm,  corporation  or  association  to  be  sold 
again. 

Sec.  10.  Each  and  every  individual,  company,  corporation  or 
association  owning,  operating  or  controlling  any  interurban,  trol- 
ley, traction  or  electric  street  railway  in  this  state  and  charging 
for  transportation  on  said  railway  shall,  on  or  before  the  first  day 
of  July,  1907,  and  quarterly  thereafter  make  a  report  to  the  comp- 
troller of  public  accounts,  under  oath  of  the  individual  or  of  the 
president,  treasurer  or  superintendent  of  such  company,  cor- 
poration or  association,  showing  the  amount  of  gross  receipts 
from  said  charges  for  transportation  on  said  railway  paid  to  or 
uncollected  by  said  individuals,  company,  corporation  or  associa- 
tion for  the  quarter  next  preceding.  Said  individual,  company, 
corporation  or  association,  at  the  time  of  making  said  report,  if 
in  or  if  connecting  any  town  or  city  of  less  than  twenty  thousand 
inhabitants,  shall  pay  to  the  treasurer  of  the  state  as  an  occupa- 
tion tax  for  the  quarter  beginning  on  said  date  equal  to  one-half 
of  one  per  cent  of  said  gross  receipts  as  shown  by  said  report; 
if  in  a  city  of  more  than  twenty  thousand  inhabitants,  said  in- 
dividual, company  or  corporation  or  association,  at  the  time  of 
making  said  report,  shall  pay  to  the  treasurer  of  the  state  of 
Texas  an  occupation  tax  for  the  quarter  beginning  on  said  date 
equal  to  three-fourths  of  one  per  cent  of  said  gross  receipts  as 
shown  by  said  report.  Provided,  that  in  ascertaining  the  popula- 
tion of  any  city  or  town,  the  same  shall  be  ascertained  by  the  last 
United  States  census,  and  provided  further  that  where  any  inter- 
urban railroad  shall  connect  any  town  having  a  population  of 
more  than  20,000  with  another  of  a  less  population,  that  it  shall 
be  liable  for  the  taxes  measured  by  the  population  of  the  largest 
town.  Provided,  further,  that  the  provisions  of  this  act  shall 
not  apply  to  any  street  railway  or  traction  company  wholly  with- 
in any  town  of  less  than  ten  thousand  inhabitants. 

Sec.  11.  Each  any  every  individual  company,  corporation  or 
association  created  by  the  laws  of  this  state  or  any  other  state, 


License  and  Occupation  Tax.  399 

who  shall  engage  in  his  own  name  or  in  the  name  of  others,  or  in 
the  name  of  its  representatives  or  agents  in  this  state  in  the  busi- 
ness of  a  wholesale  dealer  or  a  wholesale  distributor  of  spirituous, 
vinous  or  malt  liquors  or  medicated  bitters  capable  of  producing 
intoxication,  shall  on  or  before  the  first  day  of  July,  1907,  and 
quarterly  thereafter,  make  a  report  to  the  comptroller  of  public 
accounts,  under  oath  of  the  individual,  or  of  the  president,  treas- 
urer or  superintendent  of  such  company,  corporation  or  associ- 
ation, showing  the  gross  amount  collected  and  uncollected  from 
any  and  all  sales  made  within  this  state  of  any  of  said  articles 
during  the  quarter  next  preceding.  Said  individuals,  companies, 
corporations  and  associations,  at  the  time  of  making  said  report 
shall  pay  to  the  treasurer  of  the  state  of  Texas  an  occupation 
tax  for  the  quarter  beginning  on  said  date,  equal  to  one-half  of 
one  per  cent  of  said  gross  receipts  from  said  sale  as  shown  by 
said  report. 

A  wholesale  dealer  or  distributor,  within  the  meaning  of  this 
section,  is  any  individual,  company,  association  or  corporation 
selling  any  of  the  articles  hereinbefore  mentioned  either  in  his 
own  or  in  the  name  of  others  or  in  the  name  of  its  representa- 
tives or  agents  to  retail  dealers,  or  who  deliver  on  consignment 
to  their  agents  for  retail. 

Sec.  12.  Each  and  every  individual,  company,  corporation  or 
association  created  by  the  laws  of  this  state  or  any  other  state 
who  shall  engage  in  his  own  name  or  in  the  name  of  others,  or  in 
the  names  of  its  representatives  or  agents  in  this  state  in  the  busi- 
ness of  a  wholesale  or  retail  dealer  of  pistols  shall,  on  or  before 
the  first  day  of  July,  1907,  and  quarterly  thereafter,  make  a  re- 
port to  the  comptroller  of  public  accounts,  under  oath  of  the  indi- 
vidual or  of  the  president,  treasurer  or  superintendent  of  said 
company,  corporation  or  association,  showing  the  gross  amount 
collected  and  uncollected  from  any  and  all  sales  made  within  this 
state  of  all  fire  arms  during  the  quarter  next  preceding.  Such 
individuals,  companies,  corporations  and  kssociations,  at  the  time 
of  making  said  report,  shall  pay  to  the  treasurer  of  the  state  of 
Texas  an  occupation  tax  for  the  quarter  beginning  on  said  date, 
equal  to  50  per  cent  of  said  gross  receipts  from  sales  of  all  fire 
arms  as  shown  by  said  report. 

Sec.  13.  Each  and  every  individual  company,  corporation  or 
association,  whether  incorporated  under  the  laws  of  this  state  or 


400  Taxation  in  Texas. 

any  other  state  or  nation,  engaged  in  publishing,  printing,  or 
selling  text  books  used  in  the  schools  of  this  state,  or  law  books 
of  any  character,  or  owning,  controlling  or  managing  any  such 
business,  as  text  books  or  law  books  purchasers,  within  the  state 
or  out  of  it,  and  having  state  agencies  within  this  state  for  the 
purpose  of  selling  any  book  or  books  to  be  used  in  any  of  the 
schools  of  this  state,  or  any  law  books  shall  on  or  before  the 
first  day  of  July,  1907,  and  quarterly  thereafter,  make  a  report 
to  the  comptroller  of  public  accounts,  under  oath  of  the  individual 
or  of  the  president,  treasurer  or  superintendent  of  such  com- 
pany, corporation  or  association,  or  of  the  person  owning,  con- 
trolling or  managing  any  such  business,  showing  the  gross 
amount  received  from  such  business  done  within  this  state  from 
any  and  all  sources  during  the  quarter  next  preceding.  Said  in- 
dividuals, companies,  corporations  and  associations  at  the  time 
of  making  said  report  shall  pay  to  the  treasurer  of  the  state  of 
Texas  an  occupation  tax  for  the  quarter  beginning  on  said  date, 
equal  to  one  per  cent  of  said  gross  receipts,  as  shown  by  said 
report. 

Sec.  14.  Each  and  every  individual,  company,  corporation  or 
association  owning,  operating,  managing  or  controlling  any  tele- 
phone line  or  lines  or  any  telephones  within  this  state,  and  charg- 
ing for  the  use  of  the  same  shall,  on  or  before  the  first  day  of 
July,  1907,  and  quarterly  thereafter,  make  a  report  to  the  comp- 
troller of  public  accounts,  under  oath  of  the  individual,  or  of  the 
president,  treasurer  or  superintendent  of  such  company,  corpora- 
tion or  association,  showing  the  gross  amount  received  from  all 
business  within  this  state  during  the  preceding  quarter,  in  the 
payment  of  charges  for  the  use  of  its  line  or  lines,  telephone 
and  telephones,  and  from  the  lease  or  use  of  any  wires  or  equip- 
ment within  this  state  during  said  quarter.  Said  individuals,  com- 
panies, corporations  and  associations,  at  the  time  of  making  said 
report,  shall  pay  to  the  treasurer  of  the  state  of  Texas  an  occu- 
pation tax,  for  the  quarter  beginning  on  said  date,  equal  to  one 
and  one-half  per  cent  of  said  gross  receipts,  as  shown  by  said 
report. 

Sec.  15.  Each  and  every  individual,  company,  corporation  or 
association,  whether  incorporated  under  the  laws  of  this  or  any 
other  state  or  territory,  or  of  the  United  States,  or  any  foreign 
country,  which  owns,  controls,  manages  or  leases  any  oil  well 


License  and  Occupation  Tax.  401 

within  this  state,  shall,  on  or  before  the  first  day  of  July,  1907, 
and  quarterly  thereafter,  make  a  report  to  the  comptroller  of 
public  accounts  under  oath  of  the  individual,  or  of  the  president, 
treasurer  or  superintendent  of  such  company,  corporation  or  as- 
sociation, showing  the  total  amount  of  oil  produced  during  the 
quarter  next  preceding  and  the  average  market  value  thereof 
during  said  quarter.  Said  individuals,  companies,  corporations 
and  associations,  at  the  time  of  making  said  report,  shall  pay  to 
the  treasurer  of  the  state  of  Texas  an  occupation  tax  for  the  quar- 
ter beginning  on  said  date,  equal  to  one-half  of  one  per  cent  of 
the  total  amount  of  all  oil  produced,  at  the  average  market  value 
thereof,  as  shown  by  said  report. 

Sec.  16.  Each  and  every  individual,  company,  corporation  or 
association,  whether  incorporated  under  the  laws  of  this  or  any 
other  state  or  territory,  or  of  the  United  States,  or  any  foreign 
country  which  owns,  controls,  manages  or  leases  any  termmal  com- 
panies, or  any  railroad  doing  a  terminal  business  within  this 
state,  shall,  on  or  before  the  first  day  of  April,  1907,  and  quar- 
terly thereafter,  make  a  report  to  the  comptroller  of  public  ac- 
counts, under  oath  of  the  individual,  or  of  the  president,  treas- 
urer or  superintendent  of  such  company,  corporation  or  associa- 
tion showing  the  total  amount  of  its  gross  receipts  from  all 
sources  whatever  within  this  state  during  the  quarter  next  pre- 
ceding, and  the  average  market  value  thereof  during  said  quarter. 
Said  individuals,  companies,  corporations  and  associations,  at  the 
time  of  making  said  report,  shall  pay  to  the  treasurer  of  the  state 
of  Texas  an  occupation  tax  for  the  quarter  beginning  on  said 
date  equal  to  one  per  cent  of  the  total  amount  of  its  gross  receipts 
from  all  sources  whatever  as  shown  by  said  report. 

Sec.  17.  If  any  individual,  company,  corporation,  firm  or  asso- 
ciation, in  this  act  mentioned,  shall  begin  and  engage  in  any  busi- 
ness for  which  there  is  an  occupation  tax  herein  imposed,  on  or 
after  the  beginning  day  of  the  quarter  for  which  said  tax  is  im- 
posed, then,  and  in  all  such  cases,  the  amount  of  such  tax  for 
said  beginning  quarter  shall  be  and  is  hereby  fixed  at  the  sum  of 
fifty  dollars,  payable  to  the  treasurer  of  the  state  of  Texas,  in  ad- 
vance, but  for  the  next  succeeding  quarter,  and  all  other  succeed- 
ing quarters,  the  tax  shall  be  determined  by  reports  to  the  comp- 
troller of  pubHc  accounts  of  the  business  for  the  preceding  quar- 


26 


402  Taxation  in  Texas. 

ter,  or  part  thereof,  as  herein  otherwise  in  this  act  provided,  and 
reports  and  payments  of  such  tax  shall  be  made  subject  to  all 
other  provisions  of  this  act. 

Sec.  18.  Any  person,  company,  corporation  or  association,  or 
any  receiver  or  receivers,  failing  to  make  report  for  thirty  days 
from  the  date  when  said  report  is  required  by  this  act  to  be  made, 
shall  forfeit  and  pay  to  the  state  of  Texas  a  penalty  of  not  exceed- 
ing one  thousand  dollars. 

Sec.  19.  Any  person,  company,  corporation  or  association  or 
any  receiver  or  receivers  failing  to  pay  any  tax  for  thirty  days, 
from  the  date  when  said  tax  is  required  by  this  act  to  be  paid, 
shall  forfeit  and  pay  to  the  state  of  Texas  a  penalty  of  ten  per 
cent  upon  the  amount  of  such  tax. 

Sec.  20.  The  penalties  provided  for  by  this  act  shall  be  recov- 
ered by  the  attorney  general  in  a  suit  brought  by  him  in  the  name 
of  the  state  of  Texas,  and  venue  and  jurisdiction  of  such  suit  is 
hereby  conferred  upon  the  courts  of  Travis  County,  Texas. 

Sec.  21,  No  individual,  company,  corporation  or  association, 
failing  to  pay  all  taxes  imposed  by  this  act  shall  receive  a  permit 
to  do  business  in  this  state,  or  continue  to  do  business  in  this  state 
until  the  tax  hereby  imposed  is  paid.  The  receipt  of  the  treasurer 
of  the  state  of  Texas  shall  be  evidence  of  the  payment  of  such  tax. 

Sec.  22.  Except  as  herein  stated  all  taxes  levied  by  this  act 
shall  be  in  addition  to  all  other  taxes  now  levied  by  law,  provided 
that  nothing  herein  shall  be  construed  as  authorizing  any  county 
or  city  to  levy  an  occupation  tax  on  the  occupations  and  business 
taxed  by  this  act. 

Sec.  23.  If  for  any  reason  the  comptroller  of  public  accounts 
is  not  satisfied  with  any  report  from  any  such  person,  company, 
corporation,  co-partnership  or  association,  he  may  require  addi- 
tional or  supplemental  reports  containing  information  and  data 
upon  such  matters  as  he  may  need  or  deem  necessary  to  ascer- 
tain the  true  and  correct  amount  of  all  taxes  due  by  any  such  per- 
son, firm,  or  corporation. 

Every  statement  or  report  required  by  this  act,  shall  have 
affixed  thereto  the  affidavit  of  the  president,  vice-president,  secre- 
tary or  treasurer  of  the  person,  corporation,  co-partnership  or  as- 
sociation, or  one  of  the  persons  or  members  of  the  partnership, 
making  the  same  to  the  effect  that  the  statement  is  true.  The 
comptroller  shall  prepare  blanks  to  be  used  in  making  the  reports 
required  by  this  act. 


License  and  Occupation  Tax.  403 

Sec.  24.  If  the  comptroller  has  reason  to  believe,  or  does  be- 
lieve, that  any  individual  company,  corporation,  association,  re- 
ceiver or  receivers,  subject  to  the  provisions  of  this  act,  has  made 
a  false  return  or  has  failed  or  omitted  to  make  a  full  return  of 
gross  receipts,  or  other  statement  of  business  done,  required  by 
any  of  the  provisions  of  this  act,  he  shall  report  the  same  in  writ- 
ing to  the  governor  and  it  shall  be  the  duty  of  the  governor  to 
immediately  require  the  revenue  agent  of  the  state  of  Texas  to 
examine  any  books,  papers,  documents,  or  other  records  or  evi- 
dence showing  or  tending  to  show  such  unlawful  act  or  omis- 
sion. Said  revenue  agent  shall  check  the  report  made  with  such 
books,  papers,  documents  or  other  records  or  evidence,  and  make 
his  report  to  the  comptroller,  and  if  it  appears  from  said  report 
that  any  false  or  incorrect  return  has  been  made,  or  that  any  in- 
dividual, or  the  president,  treasurer  or  superintendent  of  any 
company,  corporation  or  association,  or  any  member  of  any  firm 
required  by  this  act  to  make  reports,  has  failed  or  omitted  to  make 
a  full  return,  as  required  by  law,  then  the  comptroller  shall  notify 
such  individual,  or  the  president,  treasurer  or  superintendent  of 
any  company,  corporation  or  association,  or  receiver  or  receivers 
of  any  company,  corporation  or  association  or  any  member  of  any 
firm,  to  make  forthwith  an  additional  or  supplemental  report,  and 
if  any  such  individual  or  the  president,  treasurer  or  superin- 
tendent of  any  company,  corporation  or  association,  or  any  mem- 
ber of  a  firm,  or  any  receiver  or  receivers  of  any  company,  cor- 
poration or  association  making  said  original  report,  shall  fail  or 
refuse  to  make  said  additional  or  supplemental  report  he  shall  be 
guilty  of  a  misdemeanor,  and  on  conviction  shall  be  fined  in  any 
sum  not  less  than  two  hundred  nor  more  than  five  hundred  dol- 
lars and  venue  of  such  prosecution  is  hereby  fixed  in  Travis  Coun- 
ty, Texas. 

If  it  appears  from  the  report  of  the  state  revenue  agent,  or  if 
the  comptroller  has  reason  to  believe  or  does  believe  that  any  in- 
dividual, or  any  president,  treasurer  or  superintendent  of  any 
company,  corporation  or  association,  or  any  receiver  of  any  cor- 
poration or  association  or  any  member  of  any  firm,  has  wilfully 
and  deliberately  made  a  false  report,  the  comptroller  shall  report 
the  matter  to  the  grand  jury  of  Travis  County,  Texas,  for  its  ac- 


404  '  Taxation  in  Texas. 

tion,  and  venue  of  any  offense  arising  out  of  such  transaction  is 
hereby  fixed  in  Travis  County,  Texas.  Said  state  revenue  agent, 
in  the  performance  and  discharge  of  the  duties  imposed  upon 
him  by  this  section,  shall  have  the  right  to  examine,  either  by 
himself  or  by  any  person  acting  under  his  direction,  any  books, 
papers,  documents,  records  or  evidence  which  he  may  believe  ma- 
terial and  proper  to  examine. 

Sec.  25.  All  persons,  associations  of  persons,  firms,  and  cor- 
porations upon  whose  business  an  occupation  tax  is  irhposed  un- 
der this  act,  shall,  upon  the  taking  effect  hereof,  be  exempted 
and  relieved  from  the  operation  of  the  act  of  the  Twenty-ninth 
Legislature,  approved  April  17,  1905,  being  Chapter  146  thereof, 
providing  for  the  taxation  of  the  intangible  assets  of  certain  cor- 
porations, associations  and  individuals,  and  all  sections  of  the  act 
of  the  Twenty-ninth  Legislature,  beirfg  Chapter  148  thereof,  ap- 
proved April  17,  1905,  imposing  an  occupation  tax  upon  the  oc- 
cupations herein  taxed,  are  hereby  repealed.  But  nothing  in  this 
act  shall  in  any  wise  relieve  any  individual,  company,  corpora- 
tion or  association  or  any  receiver  or  receivers  thereof,  embraced 
within  the  provisions  of  Chapter  148,  Acts  of  the  29th  Legisla- 
ture, approved  April  17,  1905,  from  any  liability,  obligation  or 
penalty  whatever,  which  may  have  been  incurred  or  fixed  under 
any  of  the  provisions  of  said  Chapter  148 ;  and  any  and  all  such 
liabilities  and  obligation  and  any  and  all  causes  of  action  in  be- 
half of  the  state  accruing  out  of  or  arising  under  said  Chapter 
148,  as  well  as  any  and  all  suits  in  behalf  of  the  state  therein, 
shall  not  abate  nor  terminate,  but  shall  survive  and  remain  in 
full  force  and  effect,  and  any  and  all  such  causes  of  action  and 
any  and  all  such  suits  shall  be  maintained  and  prosecuted  to  final 
determination  in  all  respects,  as  though  none  of  the  provisions  of 
said  Chapter  148  had  been  repealed.  Acts  30th  Leg.,  pp.  479 
to  480. 

Sayles  Ann.  Civ.  St.  1897,  Art.  5049,  Subd.  54,  imposes  an  an- 
nual occupation  tax  on  street  railway  companies,  based  on  mile- 
age. Acts  30th  Leg.  (Gen.  Laws  1907,  p.  479),  Chap.  18,  levies 
a  gross  earnings  annual  occupation  tax  on  street  railways  in  cities 
of  over  100,000  population;  Section  22  declaring  that  the  taxes 
so  levied  shall  be  in  addition  to  "all  other  taxes,"  with  the  excep- 
tions defined  by  the  act,  while  Section  25,  prescribing  the  taxes 
from  which  corporations  taxed  under  the  act  shall  be  exempt, 


License  and  Occupation  Tax.  405 

includes  occupation  taxes  imposed  by  Act  of  1905  (Laws  1905, 
p.  217,  Chap.  111).  Held,  that  the  words  "all  other  taxes,"  in 
Section  22,  included  all  taxes  except  those  specified  in  Section 
25,  and  hence  the  Act  of  1907  did  not  impliedly  repeal  so  much 
of  Article  5049,  Subd.  54,  as  imposed  occupation  taxes  on  street 
railway  companies,  but  that  the  taxes  imposed  by  that  act  were 
in  addition  to  the  gross  earnings  tax  imposed  under  Act  of  1907. 
Dallas  Electric  St.  Ry.  Co.  v.  State,  120  S.  W.  997. 

§  698.     Repealing  taxes  on  certain  occupations. 

Section  1.  That  Subdivisions  one  (1),  five  .(5),  six  (6),  eight 
(8),  eleven  (11),  twelve  (12),  thirty-one  (31),  thirty-three  (33), 
thirty-eight  (38),  fifty-one  (51),  fifty-five  (55),  fifty-nine  (59), 
of  Section  one  (1)  of  an  act  entitled  "An  act  to  amend  Article 
5049,  Chapter  one  (1),  Title  104,  of  the  Revised  Statutes,  re- 
lating to  general  occupation  taxes,"  Chapter  eighteen  (18)  of 
the  Laws  of  the  First  Special  Session  of  the  Twenty-fifth  Legis- 
lature, levying  an  occupation  tax  upon  merchants,  brokers,  and 
bankers,  dentists  not  traveling,  photograph  galleries,  toll  bridges, 
land  agents,  attorneys  and  conveyances,  livery  stables,  vehicles 
and  wagon  yards,  local  insurance  agents,  cotton,  wool  and  hide 
buyers,  steam  laundries,  grain  elevators  and  dealers  in  cotton  seed 
products,  be  and  the  same  are  hereby  repealed. 

Sec.  2.  That  Subdivision  thirteen  (13)  of  Section  one  (1)  of 
said  act  be  so  amended  as  hereafter  to  read  as  follows :  "From 
every  itinerant  physician,  surgeon,  occulist  or  medical  or  other 
specialist  of  any  kind,  traveling  from  place  to  place  in  the  prac- 
tice of  his  profession,  except  dentists  practicing  from  place  to 
place  in  the  county  of  their  residence,  an  annual  tax  of  fifty  dol- 
lars."   Act  30th  Leg.,  pp.  57  and  58. 

§  699.     Act  30th  legislature  providing  occupation  tax  on  dealers 
in  malt  liquors  in  local  option  districts. 

Be  it  enacted  by  the  legislature  of  the  state  of  Texas : 
Section  1.  In  all  counties,  justices'  precincts,  towns,  cities  or 
other  subdivisions  of  a  county  where  the  qualified  voters  thereof 
have,  by  a  majority  vote,  determined  that  the  sale  of  intoxicating 
liquors  shall  be  prohibited  therein,  there  is  hereby  levied  upon  all 
firms,  persons,  associations  of  persons  and  corporations  selling  at 
retail  non-intoxicating  malt  liquors,  such  as  "Uno,"  "Ino,"  "Fros- 
ty," "tin-top"  and  "tee-totle"  and  all  other  such  liquors,  an  an- 


406  Taxation  in  Texas. 

nual  state  tax  of  $2,000,  and  counties,  also  incorporated  cities 
and  towns  where  such  sales  are  made  may  each  levy  an  annual 
tax  of  iiot  exceeding  $1,000  upon  all  such  persons,  firms  or  cor- 
porations; provided,  that  this  section  shall  not  apply  to  regular 
druggists  or  pharmacists,  who,  as  such,  keep  for  sale  as  a  part 
of  a  regular  drug  stock,  such  proprietary  remedies  as  "malt  ex- 
tract," "malt  medicine"  and  "malt  and  iron"  used  exclusively  as 
medicine  and  not  as  a  beverage. 

Sec.  2.  In  all  counties,  justices'  precincts,  towns,  cities  or 
other  subdivisions  of  a  county  where  the  qualified  voters  thereof 
have  by  a  majority  vote  determined  that  the  sale  of  intoxicating 
liquors  shall  be  prohibited  therein,  there  is  hereby  levied  upon  all 
firms,  persons,  associations  of  persons  and  corporations  that  pur- 
sue the  business  of  selling  or  offering  for  sale  any  intoxicating 
liquors  by  soliciting  orders  therefor  in  any  quantities  whatsoever, 
in  any  such  county,  justice  precinct,  town,  city  or  other  subdivi- 
sion of  a  county,  an  annual  state  tax  of  $4,000,  and  each  county, 
and  also  each  incorporated  city  or  town  may  levy  an  annual 
tax  of  not  exceeding  $2,000  in  any  such  county  or  incorporated 
city  or  town  where  such  business  is  pursued. 

Sec.  3.  In  all  counties,  justices'  precincts,  towns,  cities  or 
other  subdivision  of  a  county  where  the  qualified  voters  thereof 
have  by  a  majority  vote  determined  that  the  sale  of  intoxicating 
liquors  shall  be  prohibited  therein,  there  is  hereby  levied  upon 
all  firms,  persons,  associations  of  persons  and  corporations  that 
pursue  the  business  of  keeping,  running,  maintaining  or  operat- 
ing what  is  commionly  known  as  a  "cold  storage"  or  any  place 
by  whatever  name  known  or  whether  named  or  not,  where  intox- 
icating or  non-intoxicating  liquors  or  beverages  are  kept  on  de- 
posit for  others,  or  where  any  such  liquors  are  kept  for  others 
under  any  kind  or  character  of  bailment,  an  annual  state  tax  of 
$2,000,  and  counties,  also  incorporated  cities  and  towns,  where 
such  business  is  located,  may  each  levy  an  annual  tax  of  not  ex- 
ceeding $1,000  upon  each  such  place  so  kept,  run,  maintained  or 
operated. 

Sec.  4.  Each  person  and  each  firm  and  each  corporation  and 
each  association  of  persons  desiring  to  engage  in  the  business 
mentioned  in  Sections  one,  two  or  three  of  this  act  in  said  local 
option  territory  before  engaging  in  same  shall  file  with  the  county 
clerk  of  the  county  in  which  the  business  is  proposed  to  be  pur- 


License  and  Occupation  Tax.  407 

sued,  an  application  in  writing  for  a  license  to  engage  therein 
and  shall  state  the  county  or  portion  of  the  county  in  which  the 
business  is  to  be  pursued  and  if  within  the  corporate  limits  of 
any  incorporated  city  or  town,  that  fact  shall  be  so  stated  and  any 
such  person  or  firm  or  corporation  or  association  of  persons  shall 
pay  to  the  tax  collector  of  the  county  the  entire  amount  of  an- 
nual tax  levied  for  the  state  and  the  entire  amount  of  the  annual 
tax  upon  such  business  as  may  be  levied  by  the  commissioners' 
court  of  said  county,  and  if  the  business  is  to  be  pursued  in  an 
incorporated  city  or  town,  shall  pay  to  the  collector  of  taxes  of 
such  city  or  town  the  tax  that  may  be  levied  on  such  business  by 
said  city  or  town,  and  all  such  taxes  shall  be  paid  in  advance  and 
no  license  shall  be  issued  by  the  county  clerk  until  the  person  or 
firm  or  corporation  or  association  of  persons  applying  therefor 
shall  exhibit  receipts  showing  the  payment  of  all  taxes  levied 
and  authorized  by  this  act  and  the  county  clerk  shall  be  entitled 
to  charge  a  fee  of  twenty-five  cents  for  the  issuance  of  such 
license. 

Sec.  5.  The  county  clerk  shall  be  and  is  hereby  required  to 
make  report  of  all  licenses  issued  by  authority  of  this  act  as  in 
other  cases. 

Sec.  6.  Any  person  or  any  member  of  a  firm  or  any  member 
of  an  association  of  persons  or  any  officer  or  representative  of 
a  corporation  who  shall  pursue  or  engage  in  or  aid  or  assist  in 
any  manner  in  said  business  mentioned  in  Sections  one,  two  or 
three  of  this  act  in  said  local  option  territory  without  there  hav- 
ing been  issued  to  said  person  or  firm  or  association  of  persons 
or  corporation  license  therefor  as  provided  for  in  this  act  shall 
each  be  guilty  of  a  misdemeanor  and  on  conviction  therefor  shall 
be  fined  in  any  sum  not  less  than  the  amount  of  the  tax  due  and 
not  more  than  double  that  sum  and  shall  in  addition  be  imprisoned 
in  the  county  jail  not  less  than  ninety  days  nor  more  than  six 
months. 

Sec.  7.  The  actual  threatened  or  contemplated  pursuit  of  any 
such  business  mentioned  in  Sections  one,  two  or  three  of  this 
act  in  said  local  option  territory  by  any  person  or  firm  or  associ- 
ation of  persons  or  corporation  without  there  having  first  been 
procured  a  license  therefor  as  provided  in  this  act  shall  be  en- 
joined at  the  suit  of  the  state  at  the  instigation  of  either  the 
county  or  district  attorney  or  at  the  suit  of  any  individual  citizen 


408  Taxation  in  Texas. 

of  the  county  where  the  business  is  or  is  about  to  be  pursued,  and 
it  shall  not  be  necessary  for  any  citizen  to  show  that  he  has  any 
pecuniary  interest  involved  and  the  state  shall  not  be  required  to 
give  security  for  cost  and  all  the  rules  of  evidence,  practice  and 
procedure  that  pertain  to  courts  of  equity  generally,  or  that  exist 
by  virtue  of  any  law  of  this  state  may  be  invoked  and  applied  in 
any  injunction  proceeding  instituted  hereunder.  Acts  30th  Leg., 
pp.  212,  213,  214. 

§  700.  Act  30th  legislature  in  regard  to  license  and  regulating 
sale  of  intoxicating  liquors. 
Section  1.  Be  it  enacted  by  the  legislature  of  the  state  of 
Texas:  Hereafter  there  shall  be  collected  from  every  person, 
firm,  corporation  or  association  9f  persons  selling  spirituous, 
vinous  or  malt  liquors,  or  medicated  bitters  capable  of  producing 
intoxication,  in  this  state,  not  located  in  any  county  or  subdivi- 
sion of  a  county,  justice  precinct,  city  or  town  where  local  op- 
tion is  in  force  under  the  laws  of  Texas,  an  annual  tax  of  three 
hundred  and  seventy-five  ($375)  dollars  on  each  separate  estab- 
lishment as  follows :  For  selling  such  liquors  or  medicated  bit- 
ters in  quantities  of  one  gallon  or  less  than  one  gallon,  three 
hundred  and  seventy-five  dollars  ($375)  ;  for  selling  such  liquors 
or  medicated  bitters  in  quantities  of  one  gallon  or  more  than 
one  gallon,  three  hundred  and  seventy-five  ($375)  dollars;  pro- 
vided, that  in  selling  one  gallon  the  same  may  be  made  up  of 
different  liquors  in  unbroken  packages  aggregating  not  less  than 
one  gallon;  for  selling  malt  liquors 'exclusively  sixty-two  dollars 
and  fifty  cents ;  provided,  further,  that  nothing  in  this  article  shall 
be  so  construed  as  to  exempt  druggists  who  sell  spirituous,  vin- 
ous, or  malt  liquors,  or  medicated  bitters  capable  of  producing 
intoxication,  on  the  prescription  of  a  physician  or  otherwise,  from 
the  payment  of  the  tax  herein  imposed;  provided,  further,  that 
this  article  shall  not  apply  to  the  sale  by  druggists  of  tinctures 
and  drug  compounds,  in  the  preparation  of  which  such  liquors 
or  medicated  bitters  are  used  and  sold  on  the  prescription  of  a 
physician  or  otherwise,  and  which  tinctures  and  compounds  are 
not  intoxicating  beverages  prepared  in  the  evasion  of  the  pro- 
visions of  this  chapter  nor  the  local  option  law.  The  commis- 
sioners' court  of  the  several  counties  in  this  state  shall  have  the 
power  to  levy  and  collect  from  every  person  or  association  of 


License  and  Occupation  Tax.  409 

persons  selling  spirituous,  vinous  or  malt  liquor,  or  medicated 
bitters,  a  tax  equal  to  one-half  the  state  tax  herein  levied ;  and 
where  any  such  sale  is  made  in  any  incorporated  city  or  town, 
such  city  or  town  shall  have  the  power  to  levy  and  collect  a  tax 
upon  such  sale  equal  to  that  levied  by  the  commissioners'  court  of 
the  county  in  which  such  city  or  town  is  situated. 

Sec.  2.  A  retail  liquor  dealer  is  a  person,  or  firm  permitted  by 
law,  being  licensed  under  the  provisions  of  this  act,  to  sell  spir- 
ituous, vinous  and  malt  liquors,  and  medicated  bitters  capable  of 
producing  intoxication,  in  quantities  of  one  gallon  or  less,  which 
may  be  drunk  on  the  premises. 

Sec.  3.  A  retail  malt  dealer  is  a  person  or  firm  permitted  by 
law,  being  licensed  under  the  provisions  of  this  act,  to  sell  malt 
liquors  capable  of  producing  intoxication  exclusively,  in  quanti- 
ties of  one  gallon  or  less  which  may  be  drunk  on  the  premises. 
Sec.  4.  No  person  shall,  directly  or  indirectly,  sell  spirituous 
or  vinous  liquors  capable  of  producing  intoxication  in  quantities 
of  one  gallon  or  less,  without  taking  out  a  license  as  a  retail 
liquor  dealer.  Any  person  who  shall  violate  the  provisions  of  this 
section  shall  be  deemed  guilty  of  a  misdemeanor  and  upon  con- 
viction thereof,  shall  be  punished  by  a  fine  of  not  less  than  fifty 
dollars,  nor  more  than  two  hundred  dollars,  or  by  imprisonment 
in  the  county  jail  for  a  term  not  to  exceed  six  months,  or  by  both 
such  fine  and  imprisonment. 

Sec.  5.  No  person  shall  sell,  directly  or  indirectly,  malt  liquor 
capable  of  producing  intoxication  in  quantities  of  one  gallon  or 
less,  without  taking  out  a  license  as  a  retail  malt  dealer;  pro- 
vided, that  this  section  shall  not  apply  to  a  retail  liquor  dealer, 
and  that  a  retail  liquor  dealer's  license  shall  be  construed  to  em- 
brace a  retail  malt  dealer's  license.  Any  person  who  shall  violate 
the  provisions  of  this  section  shall,  upon  conviction  thereof,  be 
punished  by  a  fine  of  not  less  than  twenty-five  dollars,  nor  more 
than  one  hundred  dollars,  or  by  imprisonment  in  the  county  jail 
for  a  term  not  exceeding  ninety  days,  or  by  both  such  fine  and 
imprisonment. 

Sec.  6.  This  act  shall  not  be  so  construed  as  to  deny  the  right 
of  wine  growers  to  sell  wine  of  their  own  production  in  any 
quantity  without  licenses ;  provided  that  such  wine  grower  shall 
not  permit  nor  suffer  any  wine  so  sold  by  him  to  be  drunk  on  his 
premises;  and  provided  further,  that  this  section  shail  not  be  so 


410  Taxation  in  Texas. 

construed  as  to  give  any  wine  grower  the  right  to  sell  any  wine 
to  any  minor  without  the  permission  of  the  parent,  master  or 
guardian  of  such  minor  first  had  and  obtained,  or  any  drunkard, 
after  being  notified  by  any  relative  to  such  drunkard  not  to  make 
such  sale,  gift  or  disposition.  Every  wine  grower  who  shall 
violate  any  of  the  provisions  of  this  section  shall  be  deemed 
guilty  of  a  misdemeanor  and,  on  conviction  thereof,  shall  be 
punished  by  a  fine  of  not  less  than  twenty-five  dollars,  nor  more 
than  one  hundred  dollars,  or  by  imprisonment  in  the  county  jail 
during  a  term  not  to  exceed  three  months,  or  by  both  such  fine 
and  imprisonment. 

Sec.  7.  No  retail  liquor  dealer,  nor  retail  malt  dealer,  shall 
carry  on  said  business  at  more  than  one  place  at  the  same  time 
under  the  same  license ;  nor  shall  any  such  license  be  assignable 
or  transferrable  more  than  once,  but  before  the  assignee  or  trans- 
'ferree  of  such  license  can  engage  in  business  thereunder,  he 
shall  comply  with  the  provisions  of  this  act  as  is  required  of  the 
original  licensee;  and  provided,  further,  that  the  sale  of  such 
license,  whether  in  the  name  of  the  original  licensee  or  trans- 
feree may  be  made  under  execution  or  mortgage,  and  the  pur- 
chaser of  such  license  at  such  sale  shall  have  the  right  to  sur- 
render such  license  to  the  state,  county  or  city  which  issued  the 
tax  receipt  which  is  the  basis  therefor,  and  shall  receive  therefor 
the  pro  rata  unearned  portion  of  such  license ;  provided,  fur- 
ther, that  should  said  original  licensee  or  his  assignee  or  trans- 
feree desire  to  change  the  place  designated  in  said  license,  he  may 
do  so  by  applying  to  the  county  judge  as  in  case  of  original  ap- 
plication, for  license  as  provided  in  Section  9  of  this  act,  but  it 
shall  be  necessary  to  furnish  another  certificate  from  the  comp- 
troller of  public  accounts.    Acts  30th  Leg.,  pp.  258,  259,  260. 

The  Baskin-McGregor  law.  Acts  30th  Leg.  (Laws  1907,  p. 
258,  Chap.  138),  imposing  an  annual  tax  on  persons  selling  in- 
toxicating liquors  in  non-local  option  territory,  etc.,  does  not 
impliedly  repeal  Acts  25th  Leg.  (Laws  1897,  p.  223,  Chap.  158), 
providing  for  license  in  local  option  territory;  the  provision  in 
the  Baskin-McGregor  law  that  the  same  shall  not  be  construed 
to  be  in  conflict  with  any  local  option  law,  and  no  license  shall 
be  issued  at  any  place  where  the  local  option  law  is  in  force,  re- 
ferring only  to  licenses  issued  under  the  Baskin-McGregor  law. 
Snead  v.  State,  117  S.  W.  983,  55  Tex.  Crim.  App.  583. 


License  and  Occupation  Tax.  411 

§  701.  Relating  to  the  payment  of  certain  occupation  taxes  for 
remainder  of  1907. 
Be  it  enacted  by  the  legislature  of  the  state  of  Texas : 
Section  1.  That  any  person,  firm,  company  or  corporation 
hereafter  required  to  pay  a  tax  for  the  year  1907,  for  pursuing 
any  occupation  upon  which  the  tax  is  repealed  by  an  act  of  the 
Thirtieth  Legislature  of  the  State  of  Texas,  entitled  "An  act  to 
repeal  Subdivisions  one  (1),  five  (5),  six  (6),  eight  (8),  eleven 
(11),  twelve  (12),  thirty-one  (31),  thirty-three  (33),  thirty-eight 
(38),  fifty-one  (51),  fifty-five  (55),  fifty-nine  (59),  and  to  amend 
Subdivision  thirteen  (13)  of  Section  one  (1)  of  an  act  entitled 
'An  act  to  amend  Article  5049,  Chapter  one  (1),  Title  one  hun- 
dred and  four  (104),  of  the  Revised  Civil  Statutes  relating  to 
general  occupation  taxes.  Chapter  eighteen  (18)  of  the  Acts  of 
the  First  Special  Session  of  the  Twenty-fifth  Legislature,  relat- 
ing to  taxes  on  certain  occupations,'  "  approved  March  21,  1907, 
shall  have  the  right  to  pay  said  tax  for  that  portion  of  the  year 
1907  unexpired  at  the  date  when  such  person,  firm,  company  or 
corporation  became  liable  for  such  tax,  to  be  paid  in  proportion 
to  the  amount  that  would  be  due  for  the  full  year,  and  shall  re- 
ceive a  receipt  therefor  for  such  unexpired  portion  of  the  year ; 
provided  that  any  such  person,  firm,  company  or  corporation  shall 
not  be  relieved  from  the  payment  of  any  occupation  tax  which  has 
already  accrued.    Acts  30th  Leg.,  p.  288. 

§  702.     Occupation  tax  upon  persons  engaged  in  the  business 
of  dealing  in  unearned  wages  of  another. 

Section  1.  There  is  hereby  imposed  an  annual  occupation  tax 
of  five  thousand  dollars  for  state  purposes  upon  every  person  who, 
in  his  own  behalf  or  as  agent  for  another,  shall  engage  in  the  busi- 
ness of  taking,  purchasing  or  procuring  assignments  or  transfers 
of  wages  not  earned  or  not  due  and  payable  at  the  date  of  such 
assignment  or  transfer,  whether  such  assignment  or  transfer  is 
made  absolutely,  conditionally  or  as  security,  for  each  separate 
county  in  which  such  person  may  engage  in  such  business,  either 
in  his  own  behalf  or  as  agent  of  another. 

Sec.  2.  The  commissioners'  court  of  any  county  of  this  state 
shall  have  the  power  to  levy  and  collect  from  every  person  who 
shall  engage  in  the  business  mentioned  in  Section  1  of  this  act, 
either  in  his  own  behalf  or  as  agent  for  another,  a  tax  equal  to 


412  Taxation  in  Texas. 

one-half  of  the  state  tax  herein  levied,  which  sum  when  col- 
lected shall  be  added  to  the  road  and  bridge  fund  of  said  county. 
Any  incorporated  city  or  town  in  this  state  shall  have  the  power 
to  levy  and  collect  a  tax  upon  every  person  engaging  in  the  busi- 
ness mentioned  in  Section  1  of  this  act,  either  in  his  own  behalf 
or  as  the  agent  of  another,  equal  to  one-half  the  state  tax  herein 
imposed. 

Sec.  3.  Any  person  shall  be  deemed  to  be  engaged  in  the  busi- 
ness referred  to  in  Section  1  of  this  act,  who  shall  take,  accept, 
purchase  or  procure,  directly  or  indirectly,  either  in  his  own  be- 
half or  as  the  agent  of  another,  more  than  three  such  assign- 
ments or  transfers  during  any  calendar  month.  Provided,  that 
this  act  shall  not  apply  to  or  impose  a  tax  upon  any  person,  firm 
or  corporation,  taking,  accepting,  purchasing  or  procuring  such 
assignments  or  transfers  to  pay  or  secure  the  purchase  price  of 
the  necessaries  of  life  for  the  family  of  the  assignor  or  of  the 
purchase  price  of  a  homestead  of  the  assignor,  or  of  improve- 
ments or  repairs  thereon,  or  for  any  article  necessary  for  the  use 
of  the  assignor  in  the  pursuit  of  his  employment,  or  for  the  pay- 
ment of  life  or  accident  insurance  premiums,  dues  or  assessments 
where  such  assignments  or  transfers  are  made  directly  to  the 
person,  firm  or  corporation  from  whom  such  purchases  are  made 
or  to  whom  such  premiums,  dues  or  assessments  are  payable,  or 
where  such  assignment  made  for  any  such  purposes  shall  not  be 
taken  or  accepted  at  a  discount. 

Sec.  4.  The  state  tax  imposed  by  this  act  shall  be  paid  annu- 
ally to  the  tax  collector  of  the  county  for  which  such  tax  is  paid, 
who  shall  not  accept  such  payment  until  the  person  offering  to  pay 
the  same  shall  have  filed  with  the  county  clerk  of  said  county  a 
good  and  sufficient  bond  in  the  sum  of  five  thousand  dollars, 
signed  by  him  as  principal  and  by  at  least  three  good  and  solvent 
sureties  to  be  approved  by  the  county  judge  of  said  county,  con- 
ditioned that  the  principal  will  not  take,  accept,  purchase  or  pro- 
cure any  assignment  or  transfer  mentioned  in  Section  1  of  this 
act,  at  a  rate  of  profit  or  discount,  or  at  a  price  which  will  yield  a 
greater  rate  of  interest  than  ten  per  cent  per  annum  on  the 
amount  paid  for  such  assignment  or  transfer ;  and  that  in  case  of 
any  violation  of  this  condition,  the  person  selling  or  giving  such 
assignment  or  transfer  may  recover  from  the  principal  and  sure- 
ties upon  said  bond  double  the  amount  of  the  wages  so  assigned 
or  transferred. 


License  and  Occupation  Tax.  413 

Sec.  5.  Any  person  who  shall  violate  any  of  the  terms  or  pro- 
visions of  this  act,  or  who  shall  directly,  or  as  an  agent  for  an- 
other, engage  in  the  business  mentioned  in  Section  1  of  this  act, 
without  first  paying  the  tax  or  taxes  herein  imposed,  shall  be 
deemed  guilty  of  a  misdemeanor  and  shall  be  fined  not  exceeding 
one  thousand  dollars  or  be  imprisoned  in  the  county  jail  not  ex- 
ceeding three  months,  or  by  both  such  fine  and  imprisonment, 
and  each  violation  of  this  act  shall  constitute  a  separate  offense. 
Acts  of  1905,  p.  217. 

Acts  29th  Leg.,  p.  217,  Chap.  Ill,  Sec.  1,  imposes  an  annual 
occupation  tax  of  $5,000  on  persons  engaging  in  the  business  of 
purchasing  assignments  of  unearned  wages.  Section  2  provides 
that  the  act  shall  not  apply  to  persons  procuring  such  assign- 
ments to  pay  for  necessaries  of  life  for  the  assignor's  family,  the 
purchase  of  a  homestead  for  him,  or  for  any  article  necessary  for 
the  assignor's  pursuit  of  his  employment,  etc.,  where  the  as- 
signments are  made  directly  to  the  person  from  whom  the  pur- 
chases are  made,  or  where  the  assignments  shall  not  be  taken 
at  a  discount.  Held,  that  the  act  is  discriminatory,  because  it 
puts  a  tax  upon  a  class  and  exempts  other  classes  amenable  to 
the  tax,  and  hence  is  violative  of  Const.,  Art.  8,  Sec.  1,  requiring 
taxes  to  be  equal  and  uniform,  and  Section  2,  that  all  occupation 
taxes  shall  be  equal  and  uniform  upon  the  same  class  of  sub- 
jects within  the  limits  of  the  authority  levying  the  tax. 

The  act  is  violative  of  Const.  U.  S.,  Amend.  14,  in  that  it  is  in 
restraint  of  the  freedom  of  trade,  denies  equality  before  the  law, 
denies  the  right  of  the  citizen  to  act,  and  is  class  legislation. 
Owens  V.  State,  112  S.  W.  1075,  53  Tex.  Crim.  App.  105. 

§  703.     Tax  on  dealers  in  non-intoxicating  malt  liquors. 

Section  1.  There  is  hereby  levied  upon  all  firms,  persons,  as- 
sociations of  persons  and  corporations  selling  non-intoxicating 
malt  liquors  an  annual  state  tax  of  two  thousand  ($2,000)  dol- 
lars. Counties,  incorporated  cities  and  towns  where  such  sales 
are  made  may  each  levy  an  annual  tax  of  not  exceeding  one  thou- 
sand ($1,000)  dollars  upon  all  such  persons,  firms  or  corpora- 
tions; provided,  that  this  section  shall  not  prevent  the  sale  of 
such  proprietary  remedies  as  "malt  extract,"  "malt  medicine"  and 
"malt  and  iron"  manufactured  and  used  exclusively  as  medicine 
and  not  as  a  beverage,  when  sold  upon  the  prescription  of-  a  reg- 


414  Taxation  in  Texas. 

ular  practicing  physician ;  provided,  further,  that  not  more  than 
one  sale  shall  be  made  upon  any  one  prescription. 

Sec.  2.  Each  person  and  each  firm  and  each  corporation  and 
each  association  of  persons  desiring  to  engage  in  the  business 
mentioned  in  the  preceding  section  of  this  act,  before  engaging 
in  same,  shall  file  with  the  county  clerk  of  the  county  in  which 
the  business  is  proposed  to  be  pursued,  an  application  in  writing 
for  a  license  to  engage  therein  and  shall  state  the  county  and 
the  portion  of  the  county  in  which  the  business  is  to  be  pursued, 
and  if  within  the  corporate  limits  of  any  incorporated  city  or 
town,  that  fact  shall  be  so  stated  and  any  such  person  or  firm  or 
corporation  or  association  of  persons  shall  pay  to  the  tax  collec- 
tor of  the  county  the  entire  amount  of  annual  tax  levied  by  the 
state  and  the  entire  amount  of  the  annual  tax  upon  such  business 
as  may  be  levied  by  the  commissioners'  court  of  said  county,  and 
if  the  business  is  to  be  pursued  in  an  incorporated  city  or  town, 
shall  pay  to  the  collector  of  taxes  of  such  city  or  town  the  tax 
that  may  be  levied  on  such  business  by  said  city  or  town,  and  all 
such  taxes  shall  be  paid  in  advance  and  no  license  shall  be  issued 
by  the  county  clerk  until  the  person  or  firm  or  corporation  or  as- 
sociation of  persons  applying  therefor  shall  exhibit  receipts  show- 
ing the  payment  of  all  taxes  levied  and  authorized  by  this  act  and 
the  county  clerk  shall  be  entitled  to  charge  a  fee  of  twenty-five 
cents  for  the  issuance  of  such  license. 

Sec.  3.  The  county  clerk  shall  be  and  is  hereby  required  to 
make  report  of  all  licenses  issued  by  the  authority  of  this  act  as 
in  other  cases. 

Sec.  4.  Any  person  or  any  member  of  a  firm  or  any  member 
of  an  association  of  persons  or  any  officer  or  representative  of 
a  corporation  who  shall  pursue  or  engage  in  or  aid  or  assist  in 
any  manner  in  said  business  mentioned  in  Section  1  of  this  act 
without  there  having  been  issued  to  said  person  or  firm  or  asso- 
ciation of  persons  or  corporation  license  therefor,  as  provided  for 
in  this  act,  shall  each  be  guilty  of  a  misdemeanor  and  upon  con- 
viction thereof,  shall  be  punished  by  a  fine  in  any  sum  not  less 
than  one  hundred  dollars  nor  more  than  five  hundred  dollars, 
and  by  imprisonment  in  the  county  jail  for  a  period  of  not  less 
than  twenty  days  nor  more  than  ninety  days.  Acts  31st  Leg.,  p. 
51. 


License  and  Occupation  Tax.  415 

§  704.  Occupation  tax  on  soliciting  orders  in  local  option  dis- 
tricts. 

Section  1.  In  all  counties,  justice  precincts,  towns,  cities  or 
other  subdivisions  of  a  county  where  the  qualified  voters  thereof 
have  by  a  majority  vote  determined  that  the  sale  of  intoxicating 
liquors  shall  be  prohibited  therein,  there  is  hereby  levied  upon  all 
firms,  persons,  associations  of  persons  and  corporations  that  pur- 
sue the  business  of  selling  or  offering  for  sale  any  intoxicating 
liquors  by  soliciting  or  taking  orders  therefor  in  any  quantities 
whatsoever,  in  any  such  county,  justice  precinct,  town,  city  or 
other  subdivision  of  a  county,  an  annual  state  tax  of  four  thou- 
sand ($4,000)  dollars,  and  each  county,  and  also  each  incorpo- 
rated city  or  town  may  levy  an  annual  tax  not  exceeding  two 
thousand  ($2,000)  dollars  in  any  such  county  or  incorporated 
city  or  town  where  such  business  is  pursued. 

Sec.  2.  In  all  counties,  justice  precincts,  towns,  cities  or 
other  subdivisions  of  a  county  where  the  qualified  voters  thereof 
have  by  a  majority  vote  determined  that  the  sale  of  intoxicating 
liquors  shall  be  prohibited  therein,  there  is  hereby  levied  upon  all 
firms,  persons,  associations  of  persons  and  corporations  that  pur- 
sue the  business  of  keeping,  maintaining  or  operating  what  is 
commonly  known  as  a  "cold  storage"  or  any  place  by  whatever 
name  known  or  whether  named  or  not,  where  intoxicating  or 
non-intoxicating  liquors  or  beverages  are  kept  on  deposit  for 
others,  or  where  any  such  liquors  are  kept  for  others  under  any 
kind  or  character  of  bailment,  an  annual  state  tax  of  two  thousand 
($2,000)  dollars.  Counties,  incorporated  cities  and  towns,  where 
such  business  is  located,  may  each  levy  an  annual  tax  of  not  ex- 
ceeding one  thousand  ($1,000)  dollars  upon  each  such  place  so 
kept,  run,  maintained  or  operated. 

Sec.  3.  Each  person  and  each  firm  and  each  corporation  and 
each  association  of  persons  desiring  to  engage  in  the  business 
mentioned  in  Sections  1  and  2  of  this  act  in  said  local  option  ter- 
ritory, before  engaging  in  same,  shall  file  with  the  county  clerk 
of  the  county  in  which  the  business  is  to  be  pursued,  an  appli- 
cation in  writing  for  a  license  to  engage  therein  and  shall  state 
the  county  or  portion  of  the  county  in  which  the  business  is  to 
be  pursued  and  if  within  the  corporate  limits  of  any  incorporated 
city  or  town,  that  fact  shall  be  so  stated  and  any  such  person  or 
firm  or  corporation  or  association  of  persons  shall  pay  to  the  tax 


416  Taxation  in  Texas. 

collector  of  the  county  the  entire  amount  of  annual  tax  levied  for 
the  state  and  the  entire  amount  of  the  annual  tax  upon  such  busi- 
ness as  may  be  levied  by  the  commissioners'  court  of  said  county, 
and  if  the  business  is  to  be  pursued  in  an  incorporated  city  or 
town,  shall  pay  to  the  collector  of  taxes  of  such  city  or  town  the 
tax  that  may  be  levied  on  such  business  by  said  city  or  town,  and 
all  such  taxes  shall  be  paid  in  advance  and  no  license  shall  be 
issued  by  the  county  clerk  until  the  person  or  firm  or  corporation 
or  association  of  persons  applying  therefor  shall  exhibit  receipts 
showing  the  payment  of  all  taxes  levied  and  authorized  by  this 
act  and  the  county  clerk  shall  be  entitled  to  charge  a  fee  of 
twenty-five  cents  for  the  issuance  of  such  license. 

Sec.  4.  The  county  clerk  shall  be  and  is  hereby  required  to 
make  report  of  all  licenses  issued  by  authority  of  this  act  as  in 
other  cases. 

Sec.  5.  Any  person  or  any  member  of  a  firm  or  any  member 
of  an  association  of  persons  or  any  officer  or  representative  of  a 
corporation  who  shall  pursue  or  engage  in  or  aid  or  assist  in  any 
manner  in  said  business  mentioned  in  Sections  1  and  2  of  this 
act  in  said  local  option  territory  without  there  having  been  issued 
to  said  person  or  firm  or  association  of  persons  or  corporation 
license  therefor  as  provided  for  in  this  act  shall  each  be  guilty 
of  a  misdemeanor  and  on  conviction  therefor  shall  be  fined  in  any 
sum  not  less  than  the  amount  of  the  tax  due  and  not  more  than 
double  that  sum  and  shall  in  addition  be  imprisoned  in  the  county 
jail  not  less  than  ninety  days  nor  more  than  six  months.  Acts 
31st  Leg.,  p.  53. 

§  705.     Refunding  unearned  liquor  dealer's  license. 

Section  1.  That  the  sum  of  $350,000,  or  so  much  thereof  as 
may  be  necessary,  be  and  the  same  is  hereby  appropriated  out  of 
any  money  in  the  state  treasury,  not  otherwise  appropriated,  for 
the  purpose  of  refunding  and  repaying  to  each  and  every  person, 
firm,  association,  or  corporation  who,  on  July  12,  1907,  held  a 
state  license  as  a  wholesale  or  retail  dealer  in  spirituous,  vinous, 
or  malt  liquors  or  as  a  wholesale  or  retail  dealer  in  malt  liquors 
exclusively,  under  the  laws  of  this  state,  and  who  had  paid  to 
the  state  the  occupation  tax  imposed  by  law  therefor  for  a  period 
which  had  not  at  that  date  expired  (such  license  being  abrogated 
as  of  that  date,  under  the  decisions  of  the  courts,  by  the  taking 


License  and  Occupation  Tax.  417 

effect  of  Chap.  138  of  the  General  Laws  of  the  Thirtieth  Legis- 
lature, known  as  the  Baskin-McGregor  laws),  the  unearned  por- 
tion of  such  occupation  tax.  By  unearned  portion  of  such  occu- 
pation tax  is  meant  that  proportion  of  the  whole  sum  of  such 
tax  collected  by  the  state  which  the  unexpired  portion  of  the 
term  for  which  the  same  was  collected  as  of  July  12,  1907,  bears 
to  the  whole  of  the  term  for  which  such  tax  was  paid.  Acts  31st 
Leg.,  p.  83. 

§  706.     Cannon  crackers  or  toy  pistols. 

Section  1.  There  shall  be  levied  upon  every  person,  firm  or 
corporation  engaged  in  the  occupation  of  selling  cannon  crackers, 
or  toy  pistols  used  for  shooting  or  exploding  cartridges  within 
this  state  an  annual  tax  of  five  hundred  ($500)  dollars,  and  coun- 
ties and  incorporated  cities  or  towns  in  which  such  business  shall 
be  located  shall  have  the  power  to  levy  a  tax  of  one-half  the  above 
amount  as  now  provided  by  law  in  addition  to  the  above  tax,  and 
such  person,  firm  or  corporation  so  selling  such  cannon  crackers 
shall  be  required  to  pay  an  additional  tax  in  the  above  amount 
and  take  out  an  additional  license  for  each  separate  establishment 
or  place  in  which  such  cannon  crackers  shall  be  sold. 

Sec.  2.  By  the  term  "cannon  cracker"  is  meant  any  fire  cracker 
or  other  combustible  package  more  than  two  inches  in  length,  and 
more  than  one  inch  in  circumference  commonly  sold  and  exploded 
for  purposes  of  amusement. 

Sec.  3.  Nothing  in  this  act  shall  be  so  construed  as  to  prohibit 
the  sale  of  or  to  place  a  tax  on  the  sale  of  cartridges,  combustible 
packages  or  explosives  commonly  used  for  fire  arms  or  artillery, 
mining,  excavating  earth  or  stone,  scientific  purposes  or  for  any 
public  or  private  work.    Acts  31st  Leg.,  p.  174. 

§  707.     Levy — Sufficiency. 

An  order  of  the  commissioners'  court  levying  an  occupation 
tax  on  the  occupations  taxable  by  statute  is  sufficient,  without 
specifying  each  and  every  occupation  on  which  the  tax  is  levied. 
Witherspoon  v.  State,  44  S.  W.  164,  39  Tex.  Crim.  App.  65. 

At  a  regular  term  of  the  commissioners'  court  of  Burleson 
County,  convened  in  May,  1886,  an  order  of  said  court  was  made 
and  entered  as  follows :  "There  shall  be  levied  and  collected  on 
all  occupations  pursued  in  said  county  of  Burleson,  which  are 
not  specially  provided  for  by  the  laws  of  the  state,  a  tax  of  one- 
.27 


418  Taxation  in  Texas. 

half  of  the  state  occupation  tax  as  levied  by  the  laws  of  the  state." 
This  order,  we  think,  is'  a  sufficient  and  valid  levy  of  an  occupa- 
tion tax  for  the  county  upon  the  occupation  of  liquor  dealer.  It 
was  not  essential  to  name  the  precise  amount  of  the  tax  levied, 
because  that  amount  is  made  certain  by  reference  to  the  statute 
of  the  state,  which  fixes  the  amount  of  the  state  occupation  tax 
at  $300  per  annum  for  the  occupation  of  engaging  in  the  sale  of 
spirituous,  vinous,  or  malt  liquors  or  medicated  bitters  in  quan- 
tities of  less  than  one  quart.  Acts  17th  Leg.,  Reg.  Sess.,  p.  112, 
Sec.  1.  The  tax  levied  for  the  county,  being  one-half  said 
state  tax,  must  therefore  be  $150,  and  could  not  be  any  other 
amount.     Wade  v.  State,  3  S.  W.  787,  22  Tex.  Crim.  App.  629. 

§  708.     Must  show  levy  of  tax. 

One  can  not  be  convicted  of  selling  intoxicating  liquors  with- 
out having  paid  the  occupation  tax,  without  proof  that  a  tax  was 
imposed  on  the  occupation  of  selling  liquors.  Scott  v.  State,  82 
S.  W.  656,  47  Tex.  Crim.  App.  176. 

Where,  though  it  was  alleged  a  tax  had  been  levied  by  the 
commissioners'  court,  there  was  no  proof  on  the  trial  for  a  viola- 
tion of  Rev.  St.  1895,  Art.  5049,  Subd.  3,  providing  that  every 
traveling  person  selling  patent  or  other  medicine  shall  pay  the 
tax  therein  prescribed,  that  the  tax  had  been  levied  by  the  com- 
missioners' court,  a  judgment  including  both  state  and  county 
taxes  was  erroneous.  Needhatni  v.  State,  103  S.  W.  857,  51  Tex" 
Crim.  App.  248. 

§  709.     Not  liable  when. 

Act  May  12,  1899  (Laws  1899,  p.  201,  Chap.  116),  provides 
that  a  tax  shall  be  collected  from  every  person  or  firm  who  ped- 
dles out  clocks,  cook  stoves,  or  ranges,  etc.,  to  be  paid  in  each 
county  in  which  said  occupation  is  pursued,  provided  that  a  mer- 
chant who  pays  an  occupation  tax  as  required  by  law  shall  not 
be  required  to  pay  this  special  tax  for  selling  such  articles  in 
his  place  of  business.  Held,  that  on  information  which  failed  to 
negative  the  fact  that  defendant  was  such  merchant,  selling  in 
his  place  of  business  was  insufficient.  Potts  v.  State,  74  S.  W. 
31,  45  Tex.  Crim.  App.  45. 

One  selling  ranges  by  sample,  taking  orders  for  future  deliv- 
ery to  be  paid  for  only  on  such  delivery,  and  who  does  not  de- 
liver the  goods  sold  is  not  a  peddler  within  Act  May  12,  1899 


License  and  Occupation  Tax.  419 

(Laws  1899,  p.  201),  imposing  a  tax  on  every  person  or  firm  who 
peddles  out  ranges  or  other  articles.  Potts  v.  State,  74  S.  W.  32, 
45  Tex.  Crim.  App.  45. 

A  peddler  is  an  itinerant  vendor  of  goods,  who  sells  and  deliv- 
ers the  identical  goods  carried  with  him.  He  who  sells  by  sam- 
ple, taking  orders  for  goods  for  future  delivery,  to  be  paid  for 
wholly  or  in  part  upon  subsequent  delivery,  is  not  a  peddler. 
Fotts  V.  State,  74  S.  W.  32,  45  Tex.  Crim.  App.  45 ;  State  v.  Lee, 
11  N.  C.  681,  37  Amer.  St.  649. 

A  physician  residing  in  one  town  and  maintaining  an  office  in 
another  in  which  he  practices  medicine  as  a  specialist,  traveling 
from  place  to  place  is  within  the  meaning  of  Laws  Sp.  Sess.,  1897, 
p.  51,  Subd.  13,  requiring  a  physician  traveling  from  place  to 
place  as  a  specialist  to  pay  an  occupation  tax.  Broiles  v.  State, 
68  S.  W.  685,  44  Tex.  Crim.  App.  78 ;  Hairston  v.  State,  37  S.  W. 
858,  36  Tex.  Crim.  App.  470. 

One  manufacturing  his  ice  and  selling  his  product  is  not  a  deal- 
er within  Sayles  Ann.  Civ.  St.,  Art.  5049,  Subd.  52,  imposing  a 
tax  on  a  wholesale  dealer  in  ice  in  cities  of  a  certain  population. 
Egan  V.  State,  68  S.  W.  273. 

§  710.     Occupation  not  property. 

It  is  contended,  however,  that  if  the  two  acts  of  the  legislature 
referred  to,  can  be  construed  to  mean  the  tax  sued  for,  they  are 
void,  because  in  contravention  of  the  provisions  of  the  27th  Sec- 
tion of  the  General  Provisions  of  the  Constitution  of  the  State. 
It  is  in  the  words  following:  "Taxation  shall  be  equal  and  uni- 
form throughout  the  state.  All  property  in  this  state  shall  be 
taxed  in  proportion  to  its  value,  to  be  ascertained  as  directed  by 
law,  except  such  property  as  two-thirds  of  both  houses  of  the 
legislature  may  think  proper  to  exempt  from  taxation.  The  leg- 
islature shall  have  power  to  lay  an  income  tax,  and  tax  all  per- 
sons pursuing  any  occupation,  trade  or  profession ;  provided,  that 
the  term  occupation  shall  not  be  construed  to  apply  to  pursuits 
either  agricultural  or  mechanical."  The  word  property,  as  used 
in  the  constitution  can  not  by  any  forced  construction  be  tortured 
into  meaning  an  occupation,  calling  or  profession  ;  and,  if  the  first 
part  of  the  section  can  have  any  control  over  the  exercise  of  the 
power  of  the  legislature  at  all,  it  is  in  this  way — that  it  would 
restrain  the  enactment  of  a  law  which  would  make  a  difference 


420  Taxation  in  Texas. 

at  different  places  within  the  state,  on  the  tax  imposed  on  the 
same  occupation.    Aulamier  v.  The  Governor,  1  Tex.  665. 

§  711.     Courts  cannot  interfere  when. 

The  legislature  having  the  constitutional  right  to  impose  a  tax 
on  occupations,  the  mode  in  which  it  should  be  exercised  is  a 
matter  for  them,  not  to  be  questioned  by  the  courts.  State  v. 
Stephens,  4  Tex.  137. 

§  712.     Billiard  table  must  be  kept  for  profit. 

If  a  billiard  table  is  kept  for  "occupation,"  the  occupation  was 
subject  to  the  license  tax  imposed  by  the  statute;  because  those 
"pursuing  any  occupation,  trade  or  profession"  are  by  the  consti- 
tution subject  to  a  license  tax  (Paschal's  Dig.,  p.  942,  Art.  VII., 
Sec.  27). 

Trade  or  profession  imports  a  profitable  pursuit,  and,  if  the 
billiard  table  was  kept  for  amusement  and  not  for  profit,  it  was 
not  subject  to  taxation.    Trade  v.  Benseman,  31  Tex.  277. 

§  713.     Temporary  closing  does  not  forfeit  because  when. 

The  temporary  closing  of  a  liquor  business  where  it  was  li- 
censed, and  the  conducting  of  it  at  another  place  without  trans- 
fer of  license,  does  not  forfeit  the  right  to  thereafter  carry  it  on 
under  the  license  at  the  place  provided  therein.  McLeod  v.  State, 
76  S.  W.  216,  33  Tex.  Civ.  App.  170. 

§714.     Occupation  and  privileges. 

When  a  city  is  authorized  to  levy  a  license  tax  on  particular 
property  or  business,  and  such  tax  has  been'  imposed,  it  will  be 
presumed  that  the  levy  was  made  for  the  purposes  authorized  by 
law.  Tax  imposed  by  city  ordinance  on  vehicles  held  a  license, 
and  not  an  occupation  tax,  and  hence  not  to  contravene  Const., 
Art.  8,  Sec.  1,  though  the  state  had  not  levied  occupation  tax. 
Broivn  v.  City  of  Galveston,  75  S.  W.  488,  97  Tex.  1. 

§  715.     Telegraph  company,  interstate  commerce. 

Though  telegraphic  companies  may  be  subject  to  congressional 
regulation,  they  are  also  subject  to  pay  occupation  taxes  to  the 
state ;  at  least  until  congress  shall  otherwise  provide. 

An  occupation  tax  imposed  on  a  telegraph  company,  which 
graduates  the  tax  according  to  the  business  done,  regardless  of  a 
distinction  between  business  done  wholly  within  the  state  and 


License  and  Occupation  Tax.  421 

business  done  in  part  without  the  state,  is  free  from  the  objection 
that  it  regulates  or  obstructs  interstate  commerce.  Western 
Union  Telegraph  Co.  v.  The  State  of  Texas,  55  Tex.  314. 

§  716.     State  must  first  fix  the  tax  before  city  can  tax. 

Under  Const.,  Art.  8,  Sec.  1,  providing  that  the  occupation  tax 
levied  by  any  city  shall  not  exceed  one-half  the  tax  levied  by  the 
state  on  the  same  profession  or  business,  a  city  can  not  impose 
a  license  for  revenue  on  an  occupation  or  business  until  the  leg- 
islature has  declared  that  such  occupation  or  business  shall  be 
taxed,  and  has  fixed  the  amount  of  the  tax  thereon,  ^irshfield 
V.  City  of  Dallas,  (Tex.  App.)  15  S.  W.  124,  so  far  as  in  conflict 
with  this  decision,  overruled.  City  of  Laredo  v.  Loury,  20  S.  W. 
89;  HoeMng  v.  City  of  San  Antonio,  20  S.  W.  85,  85  Tex.  228. 

§  717.     Photograph  gallery. 

Laws  Sp.  Sess.  1897,  p.  50,  Subd.  6  (Sayles  Civ.  St.,  Aft. 
5049,  Subd.  6),  levying  an  annual  tax  of  $10  on  every  operator 
or  owner  of  a  daguerrean,  photograph,  or  other  like  gallery,  is 
not  in  conflict  with  Const.,  Art.  8,  Sec.  1,  providing  that  the  leg- 
islature may  impose  occupation  taxes,  except  that  persons  en- 
gaged in  mechanical  and  agricultural  pursuits  shall  never  be  re- 
quired to  pay  an  occupation  tax,  since  photography  is  not  a  me- 
chanical pursuit. 

Laws  Sp.  Sess.  1897,  p.  50,  Subd.  6  (Sales  Civ.  St.,  Art.  5049, 
Subd.  6),  levying  an  annual  tax  of  $10  on  every  operator  or  own- 
er of  a  daguerrean,  photograph,  or  other  such  gallery,  is  not  in 
conflict  with  Const.,  Art.  8,  Sec.  2,  declaring  that  all  occupation 
taxes  shall  be  equal  and  uniform'  on  the  same  class  of  subjects, 
merely  because  agents  of  houses  situated  in  other  states,  with  no 
place  of  business  in  Texas,  who  solicit  orders  for  photographs, 
etc.,  for  such  foreign  houses,  can  not  be  taxed,  since  this  exemp- 
tion does  not  destroy  the  uniformity  of  the  state's  taxation  of 
those  carrying  on  such  trade  within  its  borders. 

Where  a  person  was  agent  for  the  owner  of  a  photograph  gal- 
lery in  D.  County,  and  was  taking  photographs  of  houses,  offer- 
ing them  for  sale,  and  soliciting  business  for  his  principal,  in  T. 
County,  the  evidence  was  not  sufficient  to  show  that  such  agent 
owned  or  operated  a  photograph  gallery,  and  was  therefore  amen- 
able to  taxation  in  T.  County,  under  Laws  Sp.  Sess.  1897,  p.  50, 
Subd.  6  (Sayles  Civ.  St.,  Art.  5049,  Subd.  6),  levying  an  annual 


422  Taxation  in  Texas. 

tax  of  $10  on  every  operator  or  owner  of  a  photograph  gallery, 
etc.    Mullinix  v.  State,  60  S.  W.  768,  42  Tex.  Crim.  App.  526. 

§  718.     Lightning  rod  agents — Interstate  commerce. 

Defendant  took  orders  to  erect  lightning  rods,  and  the  rods 
and  equipments  were  shipped  to  him  from  another  state,  but  he 
often  completed  work  on  contracts  immediately  after  making 
them,  and  before  he  could  have  received  the  goods  from  the  con- 
signor. Under  defendant's  contract  with  the  consignor  he  had  a 
salary  and  shared  in  the  profits,  he  paying  all  freights  and  ex- 
penses of  the  business.  The  liability  of  the  consignor  was  limited 
to  the  acts  of  the  defendant  in  furnishing  the  goods  on  orders 
taken  by  him.  Held,  that  the  defendant  was  liable  to  the  occupa- 
tion ta^.    Camp  v.  State,  61  S.  W.  401,  42.  Tex.  Crim.  499. 

§  719.     Foreign  corporation — Interstate  commerce. 

Where  a  person  traveling  in  a  two-horse  rig  was  agent  for  a 
foreign  corporation,  having  no  office  within  the  state,  for  the  sale 
of  organs  which  were  shipped  from  such  corporation  to  the  agent, 
and  by  him  delivered  to  purchasers  at  their  various  places  of  resi- 
dence, from  the  wagon,  the  purchasers  in  each  instance  paying 
for  the  organs  in  cash  and  notes  made  payable  to  the  corporation, 
the  fact  that  the  agent  in  one  instance  sold  an  organ  which  had 
been  previously  brought  into  the  state  and  left  at  the  house  of 
another,  and  which  he  took  from  such  house,  and  delivered  to 
the  purchaser,  did  not  render  the  agent  amenable  to  the  state  oc- 
cupation tax  act  prohibiting  peddlers  from  selling  goods  within 
the  state  without  a  license,  since  the  fact  that  the  property  had 
been  shipped  into  the  state  and  deposited  with  a  bailee,  instead 
of  being  delivered  at  once  to  the  purchaser,  did  not  the  less  ren- 
der it  a  subject  of  interstate  commerce.  Frence  v.  State,  58  S.  W. 
1015,  42  Tex.  Crim.  App.  222. 

§  720.     Commercial  travelers. 

Rev.  St.  1895,  Art.  5049,  Subd.  3,  providing  that  every  trav- 
eling person  selling  patent  or  other  medicine  shall  pay  the  tax 
therein  prescribed,  except  commercial  travelers  or  salesmen  mak- 
ing sales  or  soliciting  trade  for  merchants  engaged  in  the  sale 
of  drugs  at  wholesale,  exempts  only  those  who  sell  at  wholesale 
for  wholesale  merchants,  and  does  not  exempt  those  who  sell  at 
retail,  though  for  wholesale  merchants.  Needham  v.  State,  103 
S.  W.  857,  51  Tex.  Crim.  App.  248. 


License  and  Occupation  Tax.  423 

§  721.     Keeping  pool  table  without  license. 

The  act  of  the  Seventeenth  Legislature,  called  session,  pro- 
vides that  the  tax  to  be  assessed  and  collected  for  every  billiard, 
bagatelle,  pigeon-hole,  devil-among-the-tailors,  or  Jenny  Lind  ta- 
ble, or  anything  of  the  kind,  used  for  profit,  shall  be  $20;  and 
any  such  table  used  in  connection  with  a  drinking  saloon,  or  other 
place  of  business  where  intoxicating  liquors  are  sold  or  given 
away,  or  upon  which  any  money  or  other  thing  of  value  is  paid, 
shall  be  regarded  as  used  for  profit.  Held,  that  the  said  act  does 
not  authorize  the  taxation  or  license  of  the  use  of  a  pool  table  eo 
nomine;  and,  inasmuch  as  a  pool  table  is  not  one  of  the  tables  enu- 
merated in  the  act,  the  information,  to  charge  an  offense  under 
the  act,  should  have  alleged  that  the  said  pool  table  was  of  a  kind 
with  some  one  or  all  of  those  mentioned,  and  that  it  was  used 
for  profit.  The  motion  to  quash  the  information  should  have 
been  sustained,  and,  failing  to  sustain  it,  the  trial  court  erred  in 
overruling  the  motion  in  arrest.  Longenotti  v.  State,  2  S.  W.  620, 
22  Tex.  Crim.  App.  61. 

§  722.     Fine  for  violating  license  law. 

The  penalty  for  pursuing  a  taxed  occupation  without  having 
paid  license  therefor  is  a  fine  not  less  than  the  amount  of  the 
taxes  due,  and  not  more  than  double  that  amount.  In  charging 
the  jury  that  they  could  fine  the  defendant  in  an  amount  equal 
to  the  state  and  county  tax,  the  trial  court  erred.  Longenotti  v. 
State,  2  S.  W.  621,  22  Tex.  Crim.  App.  61. 

§  723.     Liquor  property  of  firm  no  defense. 

In  a  prosecution  for  selling  intoxicating  liquors  without  hav- 
ing paid  the  occupation  tax,  the  fact  that  the  liquors  were  the 
property  of  a  partnership  of  which  defendant  was  a  member  is 
no  defense.    Scott  v.  State,  82  S.  W.  656,  47  Tex.  Crim.  App.  176. 

§  724.     Vender  of  medicine. 

Under  Pen.  Code,  Art.  110,  providing  that  no  person  shall  pur- 
sue any  "occupation"  without  first  obtaining  a  license,  a  sale  by 
defendant,  who  is  shown  by  the  evidence  to  be  a  traveling  Meth- 
odist minister,  of  three  bottles  of  medicine,  is  not  a  pursuing  of 
the  "occupation  of  vending  medicine,"  such  as  is  contemplated 
by  this  article  of  the  code.  Love  v.  State,  20  S.  W.  978,  31  Tex. 
Crim.  App.  469. 


424  Taxation  in  Texas. 

Rev.  St.  1895,  Art.  5049,  Subd.  3,  providing  that  no  traveling 
person  shall  sell  medicine  till  he  pays  the  prescribed  tax,  pro- 
vided that  the  tax  shall  not  apply  to  commercial  travelers,  drum- 
mers, or  salesmen  making  sales  or  soliciting  trade  for  merchants 
engaged  in  wholesaling  drugs,  is  not  unconstitutional.  Huffman 
V.  State,  115  S.  W.  578,  55  Tex.  Crim.  App.  144. 

§  725.     Barber. 

The  trade  of  a  barber  is  a  "mechanical  pursuit,"  within  the 
meaning  of  Const.,  Art.  8,  Sec.  1,  exempting  persons  engaged  in 
mechanical  pursuits  from  an  occupation  tax ;  and  hence  Acts  30th 
Leg.  1907,  p.  273,  Chap,  141,  imposing  a  license  tax  on  barbers, 
is  invalid,  as  contravening  such  provision. 

Acts  30th  Leg.  1907,  p.  273,  Chap.  141,  imposing  a  license  tax 
on  barbers,  but  exempting  from  tax  (1)  students  of  the  State 
University  and  other  schools  of  the  state  who  are  making  their 
way  through  school  by  serving  as  barbers ;  (2)  those  serving  as 
barbers  in  eleemosynary  institutions  of  the  state;  and  (3)  those 
following  the  occupation  of  barbers  in  towns  of  1,000  inhabitants 
or  less — is  unconstitutional,  as  discriminating. 

The  act  is  also  void  as  violating  Bill  of  Rights,  Sec.  3,  in  that 
it  grants  special  privileges  to  certain  individuals.  Jackson  v. 
State,  117  S.  W.  818,  55  Tex.  Crim.  App.  557. 

§  726.     Oil  producers. 

The  tax  imposed  on  corporations  and  persons  operating  oil 
wells,  by  Acts  29th  Leg.,  p.  358,  Chap.  148,  is  a  tax  on  the  occu- 
pation of  owning,  controlling,  or  managing  oil  wells  producing 
oil,  and  not  an  ad  valorem  tax,  and  therefore  does  not  violate 
the  state  constitution  fixing  the  rate  of  taxation.  Producers'  Oil 
Company  v.  Stephens,  99  S.  W.  157,  44  Tex.  Civ.  App.  327. 

§  727.     Indictment  not  bad  for  duplicity. 

An  indictment  charging  in  the  same  count  a  violation  of  the 
occupation  law,  in  that  accused  pursued  the  occupation  of  running 
a  ten-pin  alley  "and"  bowling  alley  for  profit  without  procur- 
ing a  license,  is  not  vitiated  by  the  use  of  "and,"  even  if  terms 
"ten-pin  alley"  and  "bowling  alley"  be  not  in  effect  synonymous. 
O'Neal  V.  State,  100  S.  W.  919,  51  Tex.  Crim.  App.  100. 


License  and  Occupation  Tax.  425 

§  728.     Letting  wagon  for  hire. 

One  engaged  in  running  what  is  called  a  "move  wagon,"  mov- 
ing furniture  for  hire,  or  so  much  per  load,  or  by  the  job,  always 
driving  the  wagon  and  loading  and  unloading  it  himself,  or  with 
such  assistance  as  he  might  employ,  does  not  let  his  wagon  for 
hire,  within  the  meaning  of  Art.  5049,  Subd.  31,  Acts  25th  Leg., 
requiring  a  license  from  one  who  lets  a  wagon  for  hire,  not  con- 
nected with  a  livery  or  feed  stable.  Orr  v.  State,  AA  S.  W.  1102. 
39  Tex.  Crim.  App.  124. 

§  729.     Interstate  commerce. 

A  tax  on  the  occupation  of  canvassing  for  the  sale  of  light- 
ning rods  for  the  manufacturer,  whose  place  of  business  was  in 
another  state,  was  a  tax  on  interstate  commerce,  and  therefore 
void.    Talhutt  v.  State,  44  S.  W.  1091,  39  Tex.  Crim.  App.  64. 

§  730.     City  ordinance — Vehicle  not  taxed  by  state,  void. 

■  An  ordinance  of  a  city  imposing  a  tax  on  vehicles  kept  for 
public  use  not  taxed  by  the  state,  held  void.  Ex  parte  Terrel,  48 
S.  W.  504,  40  Tex.  Crim.  App.  28. 

§  731.     Social  club. 

A  club  organized,  in  good  faith,  for  the  promotion  of  social 
intercourse  and  the  encouragement  of  literature  and  art,  in  sell- 
ing intoxicants,  in  a  private  manner,  only  to  its  members  and  non- 
resident guests,  but  not  with  a  view  to  profit,  is  not  liable  for 
the  tax  imposed  by  Sayles  Civ.  St.,  Art.  3226a,  on  persons  en- 
gaged in  the  occupation  of  selling  liquors.  State  v.  Austin  Club, 
33  S.  W.  113,  89  Tex.  20. 

§  732.     Real  estate  agent  can  collect  commission  when. 

Sayles  Civ.  St.,  Art.  4665,  imposing  an  occupation  tax  on  real 
estate  agents,  and  Article  4668c,  providing  that  no  person  shall 
pursue  his  occupation  unless  he  has  a  receipt  for  his  occupation 
tax,  does  not  prevent  one  who  has  not  paid  his  tax  from  enforc- 
ing a  claim  for  commissions  for  sale.  Amato  v.  Dreyfus,  34  S. 
W.  450. 

§  733.     Wild  west  shows. 

Under  Sayles  Ann.  Civ.  St.  1897,  Art.  5049,  Subd.  23,  impos- 
ing a  license  tax  on  circuses  wherein  equestrian  or  acrobatic  feats 
are  exhibited,  a  Wild  West  show,  portraying  actual  incidents  that 


426  Taxation  in  Texas. 

had  happened  in  the  west,  and  lacking  most  of  the  essentials  which 
by  common  understanding  a  present-day  circus  includes,  is  not  a 
circus. 

Where,  under  Sayles  Ann.  Civ.  St.  1897,  Art.  5049,  Subd.  23, 
imposing  a  license  tax  on  "circuses  and  other  exhibitions,"  a  Wild 
West  show  is  not  a  circus,  it  can  not  be  held  as  "another  exhibi- 
tion," as,  in  construing  laws  imposing  burdens  of  taxation,  noth- 
ing should  be  left  to  inference  or  implication.  State  v.  Cody,  120 
S.  W.  267. 

§  734.     Local  option — Sale  of  liquors. 

Laws  1897,  p.  223,  Art.  5060a,  providing  for  collection  of  a  tax 
for  the  sale  of  liquors  in  every  district  where  local  option  is  in 
force^  took  effect  August  20,  1897.  A  commissioners'  court  or- 
dered an  election  in  a  county  on  local  option,  which  was  held 
August  3,  1897.  The  result  was  declared  August  18th,  and  pub- 
lication of  said  order  was  made  for  four  weeks,  after  which  the 
law  became  in  force  in  such  county.  Held,  that  the  act  of  1897 
was  in  force  in  such  county,  prior  to  the  time  the  local  option 
under  the  election  went  into  effect  in  such  county,  so  as  to  render 
sellers  of  liquor  subject  to  such  tax. 

The  legislature  can  enact  laws  requiring  parties  in  local  op- 
tion districts  to  pay  a  certain  tax  for  the  privilege  of  selling  intox- 
icating liquors,  where  said  sales  are  made  in  conformity  to  the 
local  option  law.  Snearly  v.  State,  52  S.  W.  547,  40  Tex.  Crim. 
App.  507. 

§  735.     Banks — Uniformity  of  taxation. 

2  Sayles  Civ.  St.,  Art.  5049,  Subd.  5,  providing  for  the  levy  of 
an  occupation  tax  on  every  person,  firm,  or  association  engaged 
in  banking,  is  not  void,  under  Const.,  Art.  8,  Sec.  2,  which  requires 
all  occupation  taxes  to  be  equal  and  uniform  on  the  same  class 
of  subjects,  by  the  fact  that  it  can  not  be  enforced  against  na- 
tional banks,  although  applying  to  banks  doing  similar  business, 
since  the  act  applies  to  all  banks  subject  to  state  taxation. 

2  Sayles  Civ.  St.,  Art.  5049,  Subd.  5,  providing  for  levy  of  an 
occupation  tax  on  every  person,  firm,  or  association  engaged  in 
banking,  does  not  violate  the  Fourteenth  Amendment  of  United 
States  Constitution,  which  prohibits  any  state  from  denying  to 
any  citizen  the  equal  protection  of  the  laws,  since  the  tax  applies 
to  all  persons  in  the  same  class.    Brooks  v.  State,  58  S.  W.  1032. 


License  and  Occupation  Tax.  427 

§  736,     Occupation — Flying-jenney. 

Where  defendant,  a  farmer,  had  provided  himself  with  the  nec- 
essary equipment  to  operate  a  flying-jenney,  an  occupation  taxed 
by  law,  and  to  operate  the  same  for  profit,  he  was  guilty  of  pur- 
suing an  occupation  without  paying  the  occupation  tax  provided 
therefor,  the  word  "occupation,"  as  used  in  the  statute,  meaning 
vocation,  calling,  trade,  or  the  business  which  one  engages  in  to 
procure  a  living  or  obtain  wealth.  Robbins  v.  State,  123  S.  W. 
695. 

§'737.     Sufficiency  of  information. 

An  information  charging  a  violation'  of  Rev.  St.  1895,  Art. 
5049,  Subd.  3,  providing  that  every  traveling  person  selling  patent 
or  other  nuedicine  shall  pay  the  tax  therein  prescribed,  except  com- 
mercial travelers  or  salesmen  making  sales  or  soliciting  trade  for 
merchants  engaged  in  the  sale  of  drugs  at  wholesale,  which  fails 
to  allege  that  defendant  was  not  a  salesman  making  sales,  is  bad. 
Neddham  v.  State,  103  S.  W.  857,  51  Tex.  Crim.  App.  248. 


CHAPTER  XXXVIII. 


CITIES  AND  TOWNS. 


Sec.  Sec. 

738.  Cities    and    towns    having    a       759. 

population  of  10,000  or  less.       760. 
739'.  Cities  having  more  than  10,- 

000  inhabitants.  761. 

740.  Debts       incurred      prior      to 

adoption  of  present  Consti-      762. 
tution.  763. 

741.  Counties    and    cities    on    the 

coast  of  the  Gulf  of  Mexico. 

742.  School  district.  764. 

743.  Taxes  due  towns  and  cities. 

744.  Lands  in  cities  and  towns.  765. 

745.  Power  of  city  council  to  regu- 

late   tax    lists — Assessment      766. 
of  taxes,  etc. 

746.  Duty  of  taxpayers  to  render      767. 

inventory   of  property,   etc.       768. 

747.  Abstract  and  survey  not  nec- 

essary— ^When. 

748.  May  prescribe  mode  of  assess-       769. 

ment. 

749.  Burden  of  proof. 

750.  Limitation  on  power  to  tax.       770. 

751.  No    ordinances    necessary    to 

empower  with  authority  to 

sue.  771. 

752.  Cities      incorporated      under 

general  law  may  license  cer-      772. 
tain  occupations. 

753.  May    license,     etc.,     pedlers,      773. 

theatres,  etc. 

754.  May  license,  etc.,  circuses,  etc. 

755.  May    license,    etc.,    hackmen       774. 

and  prescribe  their  compen- 
sation, etc.  775. 

756.  May  license,  etc.,  billiard  ta-      776. 

bles,  etc. 

757.  May  authorize  proper  officer      777. 

to  grant  license,  etc. 

758.  May  tax  street  railways. 


Power  over  finances  of  city. 

City  bonds  shall  specify — 
What. 

Bonds  form  taxation  and  may 
be  used  to  pay  taxes. 

Tax  laws  to  remain  in  force. 

Laws  to  enforce  collection 
continued  in  force,  and  all 
defenses  to  bonds  cut  off. 

Tax  collector — Liability — Gov- 
ernor to  appoint — When. 

Gulf  cities  may  issue  bonds 
for  harbors,  etc. 

Tax  to  be  levied,  interest  paid 
and  bonds  sold,  etc. 
Ad  valorem  tax. 

To  levy  and  collect  tax  and 
issue  bonds  for  improve- 
ments, buildings,  etc. 

Cities  of  10,000  inhabitants 
and  over  to  levy  and  collect 
tax. — ^Validating  act. 

Debt  shall  not  be  created  un- 
less provision  be  made  to 
pay  the  same. 

Power  of  city  council  to  pro- 
vide for  collection  of  taxes. 

Taxes  for  payment  of  indebt- 
edness. 

Board  of  aldermen  may  levy 

tax  —  How  much  —  (Towns 
and  villages.) 

Taxes  by  whom  collected — 
Sale  of  property  for. 

Real  estate  may  be  redeemed. 

When  purchaser  is  a  non-resi- 
dent. 

Where  property  is  liable  for 
taxes  and  owner  is  un- 
known. 


License  and  Occupation  Tax. 


429 


Sec.  Sec. 

778.  Incorporations  for  school  pur-      796. 

poses. 

779.  Power  of  cities  in  general  to      797. 

levy  taxes. 

780.  Tax    can    be    collected    when       798. 

void    portion    ascertainable. 

781.  Duty  of  assessor  and  collector 

in    regard    to    collection    of      799. 
taxes.  800. 

782.  Property    of    taxpayer    shall      801. 

be  levied  and  sold  for  taxes      802. 
—When. 

783.  Assessor   and   collector   shall 

make  deed  to  purchaser  to      803. 

property    sold    for     taxes —      804. 

'  Effect  of  deed.  805. 

784.  Sale   may   take   place   at  an- 

other time    than    that    first      806. 
advertised — When.  807. 

785.  Property  shall  be  struck  off 

to  city— When.  808. 

786.  Levy  of  taxes. 

787.  Record  of  levy. 

788.  Resolution  sufficient  basis  for      809. 

suit— When.  810. 

789.  Right  to  sue.  811. 

790.  Mandamus — Purpose    of    tax      812. 

may  be  shown. 
791..  Levy— Street.  813. 

792.  Inquiry  into  legality  of  cor-       814. 

poration  of  town.  815. 

793.  Ordinance  providing  for  the 

issuance      of      bonds — Suf-       816. 
ficient — When. 

794.  Cities    of    over    10,000    may 

change  rules  of  evidence.  817. 

795.  Cannot  raise  question  of  cor- 

porate    existence     in     tax      818. 
suits. 


Reincorporation  of  abolishing 
municipality. 

Revised  Statutes  1895,  Article 
487. 

Right  of  cities  to  sue  under 
charter  provisions  not  taken 
away  by  general  law. 

City  of  Houston. 

Bonds  for  existing  debts. 

Tax  on  bonds  sold  to  city. 

Majority  of  alderman  suf- 
cient  to  pass  tax  levying  or- 
dinance. 

Interest. 

Mandamus. 

Ordinance  not  resolution — 
—When. 

Sufficiency  of  levy. 

Right  of  town  to  maintain 
action. 

Cities  and  towns  may  adopt 
general  state  law  in  regard 
to  collecting  taxes. 

De  facto  corporation. 

Bawdy  house  license. 

Galveston. 

Cities  over  10,000  not  within 
limit. 

Tax  for  school  purposes  valid. 

Implied  authority  to  levy  tax. 

Limitations  of  power — Appli- 
cation of  tax  fund. 

Towns  which  may  or  have 
abolished  their  corporate  ex- 
istences. 

Collection  of  taxes  where  cor- 
poration is  abolished. 

Relating  to  issuance  of  bonds 
and  levy  of  taxes. 


§  738.     Cities  and  towns  having  a  population  of  10,000  or  less. 

Cities  and  towns  having  a  population  of  ten  thousand  inhabi- 
tants or  less,  may  be  chartered  alone  by  law.  They  may  levy, 
assess  and  collect  an  annual  tax  to  defray  the  current  expenses 
of  their  local  government,  but  such  tax  shall  never  exceed,  for 
any  one  year,  one-fourth  of  one  per  cent,  and  shall  be  collectible 


430  Taxation  in  Texas. 

only  in  current  money.  And  all  license  and  occupation  tax  lev- 
ied, and  all  fines,  forfeitures,  penalties  and  other  dues  accruing  to 
cities  and  towns,  shall  be  collectible  only  in  current  money.  State 
Const,  Sec.  4,  Art.  11. 

Annual  tax  here  used  means  an  ad  valorem  tax  and  is  not  a 
denial  of  power  to  collect  other  classes  of  taxes.  Perry  v.  Rock- 
dale, 62  Tex.  454. 

The  sum'  for  which  bonds  may  be  issued  is  the  sum  which  to- 
gether with  interest  at  the  given  rate  could  be  liquidated  by  the 
annual  stated  payments.  Russel  v.  Cage,  66  Tex.  428,  1  S.  W. 
270. 

The  legislature  has  no  power  to  authorize  a  city  under  10,000 
inhabitants  to  levy  a  special  tax  to  pay  the  bonds  or  coupons, 
when  she  has  already  levied  one-fourth  of  one  per  cent  for  cur- 
rent expenses.    Gonld  v.  City  of  Paris,  68  Tex.  512,  4  S.  W.  650. 

The  power  of  a  city  of  10,000  inhabitants  or  less  to  create  a 
debt  is  limited  to  a  sum,  the  interest  and  two  per  cent  of  the 
principal,  which  can  be  paid  out  of  a  levy  of  25  cents  on  each 
$100  worth  of  property.  Bank  v.  Terrell,  14  S.  W.  1003,  78  Tex. 
450. 

Under  Sec.  4  of  Art.  11,  and  Sec.  9  of  Art.  8,  of  the  State  Con- 
stitution, when  the  city  of  Paris  had  levied  twenty-five  cents  on 
the  hundred  dollars'  worth  of  its  assessed  taxable  property  for 
current  expenses,  it  could  levy  no  other  tax,  except  for  the  pur- 
poses mentioned  in  the  constitution.  Gould  v.  City  of  Paris,  68 
Tex.  511. 

Art.  11,  Sec.  4,  of  the  State  Constitution,  applies  only  to  cities 
of  10,000  population  or  less.  City  of  Houston  v.  Steimrt,  87  S. 
W.  665,  99  Tex.  67. 

§  739.     Cities  having  more  than  10,000  inhabitants. 

Cities  having  more  than  10,000  inhabitants  may  have  their 
charters  granted  or  amended  by  special  act  of  the  legislature,  and 
may  levy,  assess  and  collect  such  taxes  as  may  be  authorized  by 
law,  but  no  tax  for  any  purpose  shall  ever  be  lawful,  for  any  one 
year,  which  shall  exceed  two  and  one-half  per  cent  of  the  taxable 
property  of  such  city;  and  no  debt  shall  ever  be  created  by  any 
city  unless  at  the  same  time  provision  be  made  to  assess  and  col- 
lect annually  a  sufficient  sum  to  pay  the  interest  thereon  and  cre- 
ate a  sinking  fund  of  at  least  two  per  cent  thereon.  St.  Constitu- 
tion, Sec.  5,  Art.  11. 


Cities  and  Towns.  431 

Construing  this  section  and  Sec.  9,  Art.  8,  held  that  cities  of 
10,000  inhabitants  are  to  be  exempted  from  the  maximum  limit 
prescribed  for  municipalities  as  a  class,  and  may  levy  ad  valorem 
taxes  to  the  extent  of  two  and  one-half  per  cent  on  the  $100  val- 
uation, when  so  authorized  by  the  legislature.  Dean  v.  Lufkin,  63 
Tex.  437 ;  Cave  v.  City  of  Houston,  65  Tex.  619, 

Construing  this  section  with  Sec.  7,  Art.  11,  held  that  they  apply 
to  all  cities  alike  without  regard  to  the  number  of  inhabitants. 
City  of  Terrell  v.  Dissaint,  71  Tex.  770,  9  S.  W.  593. 

§  740.     Debts  incurred  prior  to  adoption  of  present  constitu- 
tion. 

Counties,  cities  and  towns  are  authorized  in  such  mode  as  may 
hereafter  be  provided  by  law,  to  levy,  assess  and  collect  the  taxes 
necessary  to  pay  the  interest  and  provide  a  sinking  fund  to  satisfy 
any  indebtedness  heretofore  legally  made  and  undertaken ;  but 
all  such  taxes  shall  be  assessed  and  collected  separately  from  that 
levied,  assessed  and  collected  for  current  expenses  of  municipal 
government,  and  shall  when  levied,  specify  in  the  act  of  levying 
the  purpose  therefor,  and  such  taxes  may  be  paid  in  the  coupons, 
bonds  or  other  indebtedness  for  the  payment  of  which  such  tax 
may  have  been  levied.    St.  Const.,  Sec.  6,  Art.  11. 

The  subjects  to  which  Sections  5  and  6  of  this  article  refer 
being  different,  the  limitations  found  in  Section  5  do  not  apply  to 
Section  6.    Voorhies  v.  Mayor,  70  Tex.  331,  7  S.  W.  679. 

To  give  effect  to  this  section,  Section  5  of  this  article  must  be 
held  to  regulate  taxation  to  raise  money  for  current  expenses  and 
to  meet  further  indebtedness,  which  under  the  constitution  may 
be  created,  and  in  manner  operates  as  a  limitation  on  the  powers 
of  taxation  conferred  by  this  section.  This  section  relates  only 
to  such  taxation  as  is  necessary  to  raise  means  to  pay  municipal 
debts  existing  at  the  time  the  constitution  was  adopted.    Id. 

Power  conferred  on  a  city  by  this  section  is  not  a  discretionary 
one,  but  was  conferred  to  secure  the  rights  of  creditors  and  must 
be  exercised  when  necessary  for  their  protection.    Id. 

Unless  a  taxpayer  avails  himself  of  the  right  to  pay  in  the 
coupon  bonds  or  other  indebtedness,  for  the  payment  of  which 
such  tax  was  levied  by  tendering  payment  before  the  institution 
of  suit  against  him,  the  city  is  entitled  to  a  money  judgment. 
Bummel  v.  Mayor  of  Houston,  68  Tex.  10,  2  S.  W.  740. 


432  Taxation  in  Texas. 

The  limitation  imposed  by  this  section  on  the  powers  of  the 
counties  to  levy  taxes  applies  only  to  the  erection  of  public  build- 
ings.   T.  &  P.  Ry.  Co.  V.  Harrison,  54  Tex.  119. 

This  section  requires  the  purpose  for  which  such  taxes  are  lev- 
ied to  be  specified,  and  gives  the  taxpayer  the  privilege  of  paying 
the  tax  in  the  coupons,  bonds  and  other  indebtedness  for  the  pay- 
ment of  which  such  tax  was  levied.    Dean  v.  Lufkin,  54  Tex.  265. 

This  section  makes  a  tax  collected  under  it  a  special  fund  and 
property  taken  in  lieu  of  the  tax,  like  the  tax  itself,  can  not  be 
diverted  to  any  other  purpose.  City  of  Sherman  v.  Williams,  84 
Tex.  421,  19  S.  W.  606. 

This  section  makes  a  tax  collected  under  it  a  special  fund.  City 
of  Sherman  v.  Williams,  19  S.  W.  606. 

This  section  has  reference  to  debts  existing  at  the  adoption  of 
the  constitution  and  a  city  may  levy  any  tax  necessary  to  pro- 
vide for  a  debt,  though  its  charter  limits  its  taxing  power  to  two 
per  cent  ad  valorem.  Voorhies  v.  City  of  Houston,  7  S.  W.  679, 
8  S.  W.  109. 

This  section  has  reference  to  debts  existing  at  the  time  of  the 
adoption  of  the  constitution,  is  not  affected  as  to  such  debts  by 
Section  5  of  this  article.     Id. 

This  section,  together  with  Section  5  of  this  article,  discussed. 
Waxahachie  v.  Brown,  4  S.  W.  209,  67  Tex.  519. 

§  741.     Counties  and  cities  on  the  coast  of  the  Gulf  of  Mexico. 

All  counties  and  cities  bordering  on  the  coast  of  the  Gulf  of 
Mexico  are  hereby  authorized  on  a  vote  of  two-thirds  of  the  tax- 
payers therein  (to  be  ascertained  as  may  be  provided  by  law) 
to  levy  and  collect  such  tax  for  construction  of  sea  walls,  break- 
waters or  sanitary  purposes,  as  may  be  authorized  by  law,  and 
may  create  a  debt  for  such  works  and  issue  bonds  in  evidence 
thereof.  But  no  debt  for  any  purpose  shall  ever  be  incurred  in 
any  manner  by  any  city  or  county  unless  provision  is  made  at  the 
time  of  creating  the  same,  for  levying  and  collecting  a  suffi- 
cient tax  to  pay  the  interest  thereon  and  provide  at  least  two  per 
cent  as  a  sinking  fund ;  and  the  condemnation  of  the  right  of  way 
for  the  erection  of  such  works  shall  be  fully  provided  for.  St. 
Const,  Sec.  7,  Art.  11. 

This  section  is  complied  with,  if  at  the  time  of  creating  the 
debt,  provision  is  made  to  collect  a  sufficient  annual  sum  to  meet 


Cities  and  Towns.  ^  433 

the  interest  and  provide  the  sinking  fund;  although  the  rate  per 
cent  to  be  levied  is  not  determined.  Mitchell  County  v.  Bank,  91 
Tex.  370,  43  S.  W.  880. 

This  section  and  Section  2  of  this  article  and  Section  9  of 
Article  8  are  self  executing  in  that  all  laws  in  conflict  are  void, 
but  they  do  not  themselves  authorize  the  levying  of  the  tax  re- 
quired by  the  corporations;  they  must  derive  their  authority  to 
levy  such  tax  from  the  legislature.    Id. 

This  section  is  complied  with  if  there  is  an  order  providing 
for  the  annual  collection  by  taxation  of  a  sufficient  sum  to  pay 
the  interest  and  create  a  sinking  fund,  although  it  does  not  fix 
the  rate  or  per  cent  of  taxation  for  each  year  by  which  such 
sum  is  to  be  collected  but  leaves  the  fixing  of  such  rate  for  each 
successive  year  to  the  commissioners'  court  or  city  council.  Bas- 
sett  V.  City  of  El  Paso,  88  Tex.  168,  30  S.  W.  893. 

This  act  of  April  29th,  1893,  is  constitutional.    Id. 

This  section  applies  to  all  counties  in  the  state.  Terrell  v.  Des- 
saint,  71  Tex.  770,  9  S.  W.  593. 

§  742.     School  district. 

The  legislature  may  constitute  any  city  or  town  a  separate  and 
independent  school  district.  And  the  citizens  of  any  city  or  town 
having  a  charter,  authorizing  the  city  authorities  to  levy  and  col- 
lect a  tax  for  the  support  and  maintenance  of  a  public  institution 
of  learning,  such  tax  may  hereafter  be  levied  and  collected,  if,  at 
an  election  held  for  that  purpose,  two-thirds  of  the  taxpayers  of 
such  city  or  town  shall  vote  for  such  tax.  State  Const.,  Sec.  10, 
Art.  11. 

A  school  tax  must  be  voted  before  it  can  be  levied,  and  the  city 
in  question  must  have  legislative  authority  to  control  its  schools 
before  such  election  can  be  had.  El  Paso  v.  Conkling,  91  Tex.  537, 
44  S.  W.  988. 

This  provision  permits  a  vote  for  school  tax  only  in  cities  hav- 
ing charters  authorizing  it. 

A  municipality  has  no  power  of  its  charter  alone  to  levy  a  school 
tax.    1  App.  C.  C,  Sec.  989. 

A  munici.pahty  having  assumed  control  of  its  public  schools  can 
collect  a  tax  for  school  purposes.  Ft.  Worth  v.  Davis,  57  Tex. 
225 ;  Dmyer  v.  Hackworth,  57  Tex.  245 ;  Perry  v.  Rockdale,  62 
Tex.  451. 

28 


434  Taxation  in  Texas. 

Towns  and  cities  have  no  power  to  levy  taxes  for  school  pur- 
poses other  than  those  expressly  authorized  by  the  constitution. 
Ft.  Worth  V.  Davis,  57  Tex.  225. 

This  section  clearly  authorizes  the  legislature  to  constitute  a 
city  a  school  district. 

Act  of  1891,  authorizing  towns  incorporated  for  free  school 
purposes  to  levy  taxes  for  school  purposes  is  in  conformity  with 
this  section.  Geid  v.  State,  31  Cr.  App.  514,  21  S.  W.  190;  Jenks 
V.  State,  29  Cr.  App.  233,  15  S.  W.  815. 

A  city,  a  de  facto  school  district,  may  levy  the  tax.  El  Paso 
V.  Ruckman,  46  S.  W.  27. 

A  city  incorporated  under  the  general  law,  can  not  levy  a  tax 
for  school  purposes,  except  under  certain  conditions,  expressed  in 
this  section.  McCoombs  v.  City  of  Rockport,  37  S.  W.  988,  14 
Tex.  Civ.  App.  560. 

§  743.     Taxes  due  towns  and  cities. 

The  provisions  of  the  chapter  of  the  general  law  of  Texas  in 
reference  to  the  sale  by  the  tax  collector  of  land  for  taxes  due  on 
it  for  state  and  county  taxes  shall  apply  as  well  to  collectors  of 
taxes  for  towns  and  cities  as  for  collectors  for  counties,  and  they 
shall  be  governed  in  selling  real  and  personal  property  by  the 
same  rules  and  regulations  in  all  respects  as  to  time,  place,  man- 
ner and  terms  and  making  deeds  as  are  provided  for  collectors  of 
taxes  for  counties.    R.  S.,  Art.  5198. 

The  requirement  that  land  in  towns  and  cities  should  be  sold 
by  lots  is  directory,  and  does  not  limit  the  power  of  the  court  to 
order  the  sale  in  the  mode  deemed  most  conducive  to  the  interest 
of  the  parties.  Oppenheimer  v.  Reed,  32  S.  W.  325,  11  Tex.  Civ. 
App.  367. 

The  Act  of  1897,  p.  127,  Sec.  11,  provides  that  any  incorporated 
city  or  town  or  school  district  shall  have  the  right  to  enforce  the 
collection  of  delinquent  taxes  due  it  under  the  provisions  of  that 
act. 

§  744.     Lands  in  cities  and  towns. 

In  any  incorporated  city  or  town  in  which  any  lots  or  blocks  of 
land  situated  within  the  corporate  limits  of  said  city  or  town  have 
been  returned  delinquent  or  reported  sold  to  said  city  or  town 
for  the  taxes  due  thereon,  the  city  council  may  prepare  lists  of  de- 
linquents in  the  same  manner  as  is  provided  for  in  Article  5232c, 


Cities  and  Towns.  435 

and  when  such  lists  shall  be  certified  to  as  correct  by  the  mayor  of 
said  city  or  town,  the  city  council  may  direct  the  city  attorney  to 
file  suit  in  the  district  court  of  the  county  in  which  said  city  or 
town  is  situated,  for  the  recovery  of  the  taxes  due  on  said  prop- 
erty together  with  penalty,  interest  and  costs  of  suit,  which  suits 
may  be  brought  in  the  same  manner  as  is  provided  in  Article 
5232e  for  the  bringing  of  suits  by  the  county  attorney.  Acts 
1897,  p.  139,  Sec.  16 ;  Sayles  R.  S.,  Art.  5232p. 

§  745.     Power  of  city  council  to  regulate  tax  lists — Assess- 
ment of  taxes,  etc. 

The  city  council  shall  have  power  by  ordinance  to  regulate  the 
manner  and  mode  of  making  out  tax  lists  or  inventories  and  ap- 
praisements of  property  therein,  and  to  prescribe  the  oath  that 
shall  be  administered  to  each  person  on  such  rendition  of  prop- 
erty, and  to  prescribe  how  and  when  property  shall  thus  be  ren- 
dered, and  to  prescribe  the  number  and  form  of  assessment  rolls, 
and  fix  the  duties  and  define  the  powers  of  the  assessor  and  col- 
lector, and  adopt  such  measures  as  they  may  deem  advisable  to 
secure  the  assessment  of  all  property  within  the  limits  of  said 
city,  and  collect  the  tax  thereupon;  and  may  by  ordinance  pro- 
vide that  any  person,  firm  or  corporation  having  property  sub- 
ject to  taxation  or  being  liable  for  any  tax  under  the  provisions 
of  this  title,  and  neglecting  to  render  a  list,  inventory  and  ap- 
praisement thereof,  as  required  by  ordinance  of  said  city,  shall 
be  liable  to  fine  and  imprisonment.  Sayles  R.  S.,  Art.  500;  Trust 
Co.  V.  City  of  Oak  Cliff,  8  Tex.  Civ.  App.  222;  State  v.  Baker, 
49  Tex.  763. 

§  746.     Duty  of  taxpayers  to  render  inventory  of  property,  etc. 

Every  person,  partnership  and  corporation  owning  property 
within  the  limits  of  the  corporation  shall  within  two  months  after 
published  notice,  hand  in  to  the  assessor  and  collector  of  the  city 
a  full  and  complete  inventory  of  the  property  possessed  or  con- 
trolled by  him,  her  or  them  within  said  limits  not  exempt  from 
taxation,  on  the  first  day  of  January  of  the  current  year,  verified 
as  required  by  ordinance,  and  any  person  failing  or  refusing  to 
comply  with  the  provisions  of  this  article  shall  be  liable  to  fine  and 
imprisonment,  and  the  city  council  shall,  by  ordinance,  clearly 


436  Taxation  in  Texas. 

define  the  duties  of  taxpayers  herein,  and  make  all  necessary  rules 
and  regulations  to  secure  the  rendition  of  property  and  the  col- 
lection of  taxes  due  thereon.    Sayles  R.  S.,  Art.  501. 

§  747.     Abstract  and  survey  not  necessary  when. 

When  the  city  ordinances  provide  that  a  description  of  real  es- 
tate by  lot  and  block  number  shall  be  sufficient,  a  failure  to  give 
the  abstract  and  survey  numbers  required  by  the  general  statute 
is  not  a  fatal  omission.  Trust  Co.  v.  City  of  Oak  Cliff,  8  Tex.  Civ. 
App.  222. 

§  748.     May  prescribe  mode  of  assessment. 

A  city  has  power  by  ordinance  to  regulate  the  manner  and 
mode  of  making  out  tax  lists  or  inventories  of  property.  Sayles 
Civ.  Stat.,  Art.  440 ;  Trust  Co.  v.  City  of  Oak  CM,  8  Tex.  Civ. 
App.  222 ;  State  v.  Baker,  49  Tex.  763. 

§  749.     Burden  of  proof. 

One  attempting  to  escape  the  payment  of  a  tax  on  the  ground 
that  municipal  debts  are  invalid,  has  the  burden  of  proving  it. 
Winston  v.  City  of  Ft.  Worth,  A7  S.  W.  740. 

§  750.     Limitation  on  power  to  tax. 

No  county,  city  or  town  shall  levy  more  than  twenty-five  cents 
for  city  or  county  purposes,  and  not  to  exceed  fifteen  cents  for 
roads  and  bridges,  on  the  one  hundred  dollars  valuation,  except 
for  the  payment  of  debts  incurred  prior  to  the  adoption  of  the 
amendment,  September  25,  1883 ;  and  for  the  erection  of  public 
buildings,  streets,  sewers,  water  works,  and  other  permanent  im- 
provements, not  to  exceed  twenty-five  cents  on  the  one  hundred 
dollars  valuation  in  any  one  year,  and  except  as  is  in  this  con- 
stitution otherwise  provided;  and  the  legislature  may  also  au- 
thorize an  additional  annual  ad  valorem  tax  to  be  levied  and  col- 
lected for  the  maintenance  of  the  public  roads,  provided  that  a  ma- 
jority of  the  qualified  property  taxpaying  voters  of  the  county,  vot- 
ing at  an  election  to  be  held  for  that  purpose,  shall  vote  such  tax, 
not  to  exceed  fifteen  cents  on  the  one  hundred  dollars  valuation 
of  the  property  subject  to  taxation  in  such  county.  St.  Const., 
Sec.  9,  Art.  8. 

§  751.     No  ordinance  necessary  to  empower  with  authority  to 
sue. 

As  a  city  has  the  right  by  statute  to  bring  suits,  no  ordinance 
is  necessary  to  authorize  it  to  sue  for  its  taxes,  a  resolution  direct- 


Cities  and  Towns.  437 

ing  the  suit  to  be  brought  being  sufficient  for  that  purpose.  Sayles 
R.  S.,  Art.  342 ;  Trust  Co.  v.  City  of  Oak  Cliff,  8  Tex.  Civ.  App. 
217. 

§  752.     Cities  incorporated  under  general  law  may  license  cer- 
tain occupations. 

To  license,  tax  and  regulate  merchants,  commission  merchants, 
hotel  and  innkeepers,  drinking  houses  or  saloons,  bar  rooms,  beer 
saloons  and  all  places  or  establishments  where  intoxicating  or 
fermented  liquors  are  sold ;  brokers,  money  brokers,  real  estate 
agents  and  insurance  agents,  insurance  brokers  and  auctioneers, 
and  all  other  trades,  professions,  occupations  and  callings,  the  tax- 
ing of  which  is  not  prohibited  by  the  constitution  of  the  state, 
which  tax  shall  not  be  construed  to  be  a  tax  on  property.  . 

(1)  A  city  can  not  tax  and  license  a  bawdy  house.  City  of 
San  Antonio  v.  Schneider,  37  S.  W.  767.    Sayles  R.  S.,  Art.  427. 

§  753.     May  license,  etc.,  peddlers,  theatres,  etc. 

To  license,  tax  and  regulate,  or  suppress  and  prevent  hawkers, 
peddlers,  pawnbrokers,  and  keepers  of  theatrical  or  other  exhibi- 
tions, shows  and  amusements.    Sayles  R.  S.,  Art.  428. 

§  754.     May  license,  etc.,  circuses,  etc. 

To  license,  tax  and  regulate  or  prohibit  theatres,  circuses,  the 
exhibitions  of  common  showmen,  and  of  shows  of  any  kind  and 
the  exhibition  of  natural  or  artificial  curiosities,  caravans,  menag- 
eries and  musical  exhibitions  and  performances.    R.  S.,  Art.  429. 

§  755.     May  license,  etc.,  hackmen  and  prescribe  their  com- 
pensation,  etc. 

To  license,  tax  and  regulate  hackmen,  draymen,  omnibus  driv- 
ers and  drivers  of  baggage  wagons,  porters  and  all  others  pursu- 
ing like  occupations  with  or  without  vehicles,  and  prescribe  their 
compensation  and  provide  for  their  protection  and  make  it  a  mis- 
demeanor for  any  person  to  attempt  to  defraud  them  of  any 
legal  charge  for  services  rendered,  and  to  regulate,  license  and 
restrain  runners  for  railroads,  stages  and  public  houses.  Sayles 
R.  S.,  Art.  430. 

§  756.     May  license,  etc.,  billiard  tables,  etc. 

To  license,  tax  and  regulate  billiard  tables,  pin-alleys,  ball-al- 
leys ;  to  suppress  and  restrain  disorderly  houses,  tippling  shops 


438  Taxation  in  Texas. 

and  groceries,  gambling  and  gaming  houses,  lotteries  and  all 
fraudulent  devices  and  practices,  and  prohibit  bawdy  houses  and 
houses  of  prostitution  or  assignation  within  the  limits  of  the 
city.    Sayles  R.  S.,  Art.  431. 

§  757.     May  authorize  proper  officer  to  grant  license,  etc. 

To  authorize  the  proper  officer  of  the  city  to  grant  and  issue 
licenses,  and  to  direct  the  manner  of  issuing  and  registering 
thereof  and  the  fees  and  charges  to  be  paid  therefor.  No  license 
shall  be  issued  for  a  longer  period  than  one  year,  and  shall  not  be 
assignable  except  by  permission  of  the  city  council.  Sayles  R.  S., 
Art.  432. 

§  758.     May  tax  street  railways. 

The  city  council  of  cities  incorporated  under  general  law  shall 
have  power  to  assess  and  collect  the  ordinary  municipal  taxes 
upon  city  or  horse  railroads.    Sayles  R.  S.,  Art.  461. 

§  759.     Power  over  finances  of  city. 

To  appropriate  so  much  of  the  revenues  of  the  city,  emanating 
from  whatever  source,  for  the  purpose  of  retiring  and  discharging 
the  accrued  indebtedness  of  the  city  and  for  the  purpose  of  im- 
proving the  public  markets,  and  streets,  erecting  and  conducting 
city  hospitals,  city  hall,  water  works,  and  so  forth,  as  they  may 
from  time  to  time  deem  expedient ;  and  in  furtherance  of  these  ob- 
jects they  shall  have  power  to  borrow  money  upon  the  credit  of 
the  city  therefor  in  such  sum  or  sums  as  they  may  deem  ex- 
pedient, to  bear  interest  not  exceeding  ten  per  cent  per  annum, 
payable  semi-annually  at  such  place  as  may  be  fixed  by  city 
ordinance,  provided  that  the  aggregate  amount  of  bonds  issued 
by  the  city  council  shall  at  no  time  exceed  six  per  cent  of  the 
value  of  the  property  within  said  city  subject  to  ad  valorem  tax. 
S.  R.  S.,  Art.  466. 

The  term  "debt,"  as  used  in  the  constitution,  means  any  pe- 
cuniary obligation,  imposed  by  contract,  except  such  as  were,  at 
the  date  of  the  contract,  within  the  lawful  and  reasonable  contem- 
plation of  the  parties  to  be  satisfied  out  of  the  current  revenues  for 
the  year  or  out  of  some  fund  then  within  the  immediate  control 
of  the  corporation.    McNeill  v.  City  of  Waco,  33  S.  W.  322, 

A  town  exceeded  its  powers  in  contracting  to  issue  bonds  for 
a  public  purpose.  It  afterwards  became  a  city  under  the  gen- 
eral law.    Held,  that  the  contract  was  not  ratified  by  the  act  of 


Cities  and  Towns.  439 

becoming  a  city,  nor  could  the  city  ratify  where  an  issue  of  the 
bonds  would  increase  its  indebtedness  beyond  the  legal  limit- 
Wa<xahachie  v.  Brown,  67  Tex.  519,  4  S.  W.  207;  Noel  v.  City  of 
San  Antonio,  33  S.  W.  263. 

Contract  by  a  city  to  issue  bonds  and  levy  a  tax  held  void  as 
being  in  excess  of  authority.  Purchaser  bound  by  recitals  in 
bond.  No  implied  contract  on  part  of  city  to  pay  for  property 
purchased  in  such  transaction.  Gould  v.  City  of  Paris,  68  Tex. 
511,  4S.  W.  650. 

A  taxpayer,  can  not  enjoin  the  issue  of  bonds  voted  by  a  city 
but  which  would  be  void  even  in  the  hands  of  a  bona  fide  pur- 
chaser, since  neither  he  nor  the  city  could  suffer  an  injury  from 
the  issue.    Bolton  v.  City  of  San  Antonio,  21  S.  W.  64. 

This  article  confers  authority  upon  cities  organized  under  the 
general  laws  to  purchase  sites  and  erect  public  buildings  and  to- 
issue  bonds  for  that  purpose,  but  no  such  power  is  given  to  towns 
under  the  general  laws,  and  it  may  be  doubted  whether  such 
power  has  been  given  to  any  town  by  special  charter.  The  defini- 
tion and  authority  of  towns  and  villages  are  to  be  found  in  Chap- 
ter 11  of  this  title,  and  they  can  exercise  only  such  powers  as  are 
conferred  in  that  chapter.  The  limitation  as  to  the  amount  of 
taxation  by  cities  and  towns  for  municipal  purposes  is  prescribed 
by  the  eleventh  article  of  the  constitution.  Waxahachie  v.  Brown, 
67  Tex.  519,  4  S.  W.  207.  See  Bassctt  v.  City  of  El  Paso,  28  S. 
W.  554. 

§  760.     City  bonds  shall  specify  what. 

All  bonds  shall  specify  for  what  purpose  they  were  issued,  and 
when  any  bonds  are  issued  by  the  city  a  fund  shall  be  provided 
to  pay  the  interest  and  create  a  sinking  fund  to  redeem  the  bonds, 
which  fund  shall  not  be  diverted  nor  drawn  upon  for  any  other 
purpose,  provided,  however,  that  said  sinking  fund  may,  as  it 
accumulates,  be  invested  in  bonds  of  the  United  States,  the  state 
of  Texas,  or  counties  in  said  state,  and  the  city  treasurer  shall 
honor  no  draft  upon  said  fund  except  to  pay  interest  upon  or  re- 
deem the  bonds  for  which  it  was  provided  or  for  investment  in 
other  securities  as  above  provided.     Sayles  R.  S.,  Art.  467. 

The  power  granted  to  raise  money  by  issuing  bonds  implies  the 
right  to  issue  bonds  having  the  commercial  quality  of  negotia- 
bility. Bonds  mean  negotiable  securities.  City  of  Austin  v.  Nolle, 
85  Tex.  520,  22  S.  W.  668,  960. 


440  Taxation  in  Texas. 

A  contract  to  pay  a  debt  by  the  issuance  of  bonds,  no  provision 
being  made  to  create  a  fund,  is  void,  and  a  guaranty  of  the  con- 
tract is  also  void.    Hoimrd  v.  Smith,  38  S.  W.  15. 
§  761.     Bonds  exempt  form  taxation  and  may  be  used  to  pay 
taxes. 

The  new  bonds  thus  issued  by  any  city  or  town  shall  be  exempt 
from  the  payment  of  all  taxes  levied  by  such  city  or  town,  and 
the  taxes  levied  to  pay  said  new  bonds  may  be  paid  in  said 
bonds  or  coupons  thereof  if  matured ;  provided  that  said  coupons 
and  bonds  shall  only  be  received  in  payment  of  taxes  levied  for 
the  purpose  of  paying  such  bonds  and  coupons.  Sayles  R.  S., 
Art.  473. 
§  762.     Tax  laws  to  remain  in  force. 

All  laws  in  force  providing  for  the  collection  of  taxes  for  the 
payment  of  the  principal  and  interest  of  such  existing  bonds  shall 
apply  and  be  in  force  for  the  collection  of  taxes  for  the  payment 
of  the  principal  and  interest  of  such  new  bonds;  provided  that 
the  sinking  fund  may  be  used  in  the  purchase  and  cancellation  of 
such  new  bonds  whenever  the  same  can  be  bought  at  not  more 
than  their  par  value.  Sayles  R.  S.,  Art.  476. 
§  763.  Laws  to  enforce  collection  continued  in  force,  and  all 
defenses  to  bonds  cut  off. 

The  object  and  intention  of  these  provisions  being  to  enable  the 
cities  or  towns  in  this  state  which  have  granted  subsidy  bonds  to 
railroads  or  other  works  of  internal  improvement,  or  created  any 
other  indebtedness  whatever,  whether  bonded  or  floating,  to  com- 
promise the  same,  and  thereby  reduce  the  burden  of  taxation,  it 
is  hereby  declared  as  an  inducement  to  the  holders  of  said  bonds 
to  accept  the  compromise  that  whenever  such  compromise  shall  be 
entered  into  and  accepted  in  good  faith  either  by  the  holders  of 
the  present  bonds  or  by  any  persons  purchasing  such  new  bonds 
as  provided  herein,  that  all  laws  in  force  or  which  may  hereafter 
be  in  force  for  the  assessment  and  collection  of  the  state  taxes 
shall  also  be  in  force  and  apply  to  the  assessment  and  collection 
of  the  taxes  levied  to  meet  the  interest  and  sinking  fund  of  said 
new  bonds ;  and  in  any  suits  instituted  to  enforce  the  payment  of 
said  new  bonds  or  coupons  against  any  such  city  or  town  no  de- 
fense, either  in  law  or  equity,  shall  be  admitted  in  any  of  the 
courts  of  this  state  except  such  as  originated  upon  or  subsequent 
to  the  issuance  of  such  new  bonds.    R.  S.,  Art.  477. 


Cities  and  Towns.  441 

§  764.     Tax  collector — Liability — Governor  to  appoint  when. 

Whenever  a  collector  of  taxes  shall  neglect  or  refuse  to  col- 
lect the  taxes  levied  for  the  payment  of  the  interest  and  sinking 
fund  of  such  new  bonds,  he  shall  be  liable  on  his  official  bond,  at 
the  suit  of  any  persons  holding  any  of  such  bonds  or  coupons,  for 
all  such  damages  as  said  person  or  persons  shall  have  sustained 
by  reason  of  his  neglect  or  refusal;  nor  shall  such  collector  or 
his  sureties  be  relieved  of  such  liability  by  his  resignation  of  the 
office ;  and  whenever  any  person  who  may  be  elected  collector  of 
taxes  of  any  city  or  town  shall  fail,  neglect  or  refuse  to  give  the 
bond  required  for  the  collection  of  such  tax,  or  whenever  the 
mayor  or  board  of  aldermen  shall  appoint  any  person  who  shall 
fail,  neglect  or  refuse  to  give  said  bond,  or  whenever  they  shall 
fail,  neglect  or  refuse  to  appoint  some  person  who  will  give  said 
bond  and  collect  said  tax,  then  it  is  hereby  made  the  duty  of  the 
governor  to  appoint  some  suitable  person  to  collect  said  taxes, 
who  shall  perform  all  the  duties  required  by  these  provisions  or 
any  other  laws  of  this  state  relating  to  the  collection  of  said  taxes, 
from  the  term  of  his  said  appointment  until  the  next  general  elec- 
tion.   Sayles  R.  S.,  Art.  478. 

§  765.     Gulf  cities  may  issue  bonds  for  harbors,  etc. 

The  boards  of  aldermen,  or  other  constituted  municipal  authori- 
ties of  cities  bordering  on  the  coast  of  the  Gulf  of  Mexico,  are 
hereby  authorized  and  empowered  to  appropriate  money  to  im- 
prove and  to  aid  in  the  improvement  of  their  harbors  and  of  the 
bars  at  the  entrance  thereof ;  provided,  that  they  shall  not  thereby 
increase  their  aggregate  debt  beyond  the  amount  of  indebtedness 
limited  by  their  charters  respectively,  such  appropriations  to  be 
made  out  of  any  surplus  funds  which  may  at  any  time  be  on 
hand  and  by  the  use  or  sale  of  any  bonds  heretofore  authorized 
to  be  issued ;  provided,  such  bonds  are  not  needed  for  the  purposes 
for  which  they  were  specially  authorized ;  and,  also,  if  necessary 
therefor,  to  issue  and  dispose  of  bonds  with  interest  coupons,  at- 
tached in  such  amounts  as  may  be  necessary  not  to  exceed  the 
limit  of  indebtedness  fixed  by  their  charters.  Sayles  R.  S.,  Art. 
482. 

§  766.     Tax  to  be  levied,  interest  paid  and  bonds  sold,  etc. 

The  city  council  or  other  constituted  municipal  authorities,  as 
the  case  may  be,  shall  levy  an  annual  ad  valorem  tax  on  the  prop- 


442  Taxation  in  Texas. 

erty  in  said  city,  sufficient  to  pay  the  interest  and  create  a  sinking 
fund  for  the  redemption  of  said  bonds,  as  required  by  the  consti- 
tution. The  interest  on  said  bonds  shall  be  paid  semi-annually, 
and  it  shall  not  exceed  five  per  cent.  Said  bonds  shall  not  be  sold 
at  less  than  par.    Sayles  R.  S.,  Art.  483. 

§  767.     Ad  valorem  tax. 

The  city  council  shall  have  power  within  the  city,  by  ordinance 
to  annually  levy  and  collect  taxes,  not  exceeding  one-fourth  of 
one  per  cent  on  the  assessed  value  of  all  real  and  personal  estate 
and  property  in  the  city  not  exempt  from  taxation  by  the  consti- 
tution and  laws  of  the  state.    Sayles  R.  S.,  Art.  484. 

§  768.     To  levy  and  collect  tax  and  issue  bonds  for  improve- 
ments, buildings,  etc. 

The  city  or  town  council  or  board  of  aldermen  of  any  incor- 
porated city  or  town  within  the  limits  of  this  state  shall  have  pow- 
er, by  ordinance  to  levy  and  collect  an  annual  ad  valorem  tax  of 
not  exceeding  twenty-five  cents  on  the  one  hundred  dollars  valu- 
ation of  taxable  property  within  such  city  or  town  for  the  erec- 
tion, construction  or  purchase  of  public  buildings,  streets,  sewers 
and  other  permanent  improvements  within  the  limits  of  such  city 
or  town.  Within  the  meaning  of  this  article  shall  be  included 
building  sites  and  buildings  for  public  free  schools  and  institu- 
tions of  learning  within  those  cities  and  towns  which  have  as- 
sumed or  which  may  hereafter  assume  the  exclusive  control  and 
management  of  the  public  free  schools  and  institutions  of  learning 
within  their  limits.     Sayles  R.  S.,  Art.  485. 

§  769.     Cities   of  ten  thousand  inhabitants  and  over  to  levy 
and  collect  tax — Validating  act. 

Cities  having  more  than  ten  thousand  inhabitants  may  levy,  as- 
sess and  collect  taxes  not  exceeding  one  and  one-half  per  cent  on 
the  assessed  value  of  real  and  personal  estate  and  property  in  the 
city,  not  exempt  from'  taxation  by  the  constitution  and  laws  of 
the  state,  and  assessments,  levy  and  collection  of  taxes  made  by 
such  cities  for  the  year  1889  are  hereby  made  valid  to  the  amount 
aforesaid,  and  such  cities  are  hereby  authorized  to  levy,  assess 
and  collect  a  further  tax  of  twenty-five  cents  on  the  one  hundred 
dollars'  worth  of  property  for  the  purpose  of  paying  the  debts  of 
such  city  lawfully  contracted  prior  to  the  first  day  of  January, 


Cities  and  Towns,  443 

1889,  not  to  include  any  bonded  debt.  Any  funding  warrants 
that  may  be  issued  for  such  debt  by  any  such  city  shall  not  be 
included  in  the  limit  of  six  per  cent  prescribed  by  Article  466; 
provided,  that  this  article  shall  not  apply  to  or  in  any  manner 
affect  any  city  organized  under  a  special  charter,  and  shall  not 
be  construed  to  validate  any  debt  contracted  by  any  city  without 
authority  of  law  existing  at  the  time  the  same  was  contracted. 
Sayles  R.  S.,  Art.  487. 

§  770.     Debt  shall  not  be  created  unless  provision  be  made  to 
pay  the  same. 

No  debt  shall  ever  be  created  by  any  city  unless  at  the  same 
time  provision  be  made  to  assess  and  collect  annually  a  sufficient 
sum  to  pay  the  interest  thereon  and  create  a  sinking  fund  of  at 
least  two  per  cent  thereon.     Sayles  R.  S.,  Art  488. 

§  771.  Power  of  city  council  to  provide  for  collection  of  taxes. 
The  city  council  may  and  shall  have  full  power  to  provide  by 
ordinance  for  the  prompt  collection  of  all  taxes  assessed,  levied 
and  imposed  under  this  title,  and  due  or  becoming  due  to  said 
city,  and  are  hereby  authorized  and  to  that  end  may  and  shall 
have  full  power  and  authority  to  sell  or  cause  to  be  sold  real  as 
well  as  personal  property  and  may  and  shall  make  all  such  rules 
and  regulations,  and  ordain  and  pass  all  ordinances  as  they  may 
deem  necessary  to  the  levying,  laying,  imposing,  assessing  and 
collecting  of  any  of  the  taxes  herein  provided.  Sayles  R.  S.,  Art. 
499. 

§  772.     Taxes  for  payment  of  indebtedness. 

The  city  council  may  also  levy,  assess  and  collect  taxes  neces- 
sary to  pay  the  interest  and  provide  a  sinking  fund  to  satisfy  any 
indebtedness  heretofore  legally  made  and  undertaken  ;  but  all  such 
taxes  shall  be  assessed  and  collected  separately  from  those  levied, 
assessed  and  collected  for  current  expenses  of  municipal  govern- 
ment, and  shall  when  levied,  specify  in  the  act  of  levying  the  pur- 
-  pose  therefor ;  and  such  taxes  may  be  paid  in  the  coupons,  bonds 
or  other  indebtedness  for  the  payment  of  which  such  tax  may 
have  been  levied.    Sayles  R.  S.,  Art.  498. 

§  773.     Board    of    aldermen    may    levy    tax — How    much — 
(Towns  and  Villages). 

The  board  of  aldermen  shall  have  power  to  levy  and  collect  an 
occupation  tax  of  not  more  than  one-half  of  the  amount  levied 


444  Taxation  in  Texas. 

by  the  state ;  also  to  levy  taxes  on  persons  and  property,  real  and 
personal,  within  the  corporation,  subject  to  taxation  by  the  laws 
of  the  state ;  but  the  tax  on  persons  and  property  shall  not  in 
any  one  year  exceed  the  rate  of  one-fourth  of  one  per  cent  on  the 
one  hundred  dollars  valuation.    Sayles  R.  S.,  Art.  595. 

§  774.     Taxes  by  vv^hom  collected — Sale  of  property  for. 

The  corporation  tax  shall  be  assessed  and  collected  by  the  mar- 
shal, and  if  the  same  be  not  voluntarily  paid  he  shall  have  power 
to  make  the  collection  in  the  same  manner  and  with  like  effect  as 
is  prescribed  in  Chapter  6  of  this  title,  for  collection  of  taxes  in 
cities  so  far  as  applicable.    Sayles  R.  S.,  Art.  608. 

§  775.     Real  estate  may  be  redeemed. 

Real  estate  sold  for  taxes  due  the  corporation  may  be  redeemed 
as  provided  for  for  cities  of  1,000  or  more.    Sayles  R.  S.,  Art.  609. 

§  776.     When  purchaser  is  a  non-resident. 

Where  the  purchaser  does  not  reside  within  the  limits  of  the 
corporation,  the  estate  may  be  redeemed  by  making  the  payment 
into  the  treasury  of  the  corporation  for  the  benefit  of  the  pur- 
chaser.   Sayles  R.  S.,  Art.  610. 

§  777.  Where  property  is  liable  for  taxes  and  owner  is  un- 
known. 
When  any  property  shall  be  liable  to  assessment  for  corpora- 
tion taxes,  and  the  owner  is  unknown,  such  property  shall  be 
valued  by  the  marshal,  and  assessed  by  its  description,  stating  that 
the  owner  of  the  property  is  unknown ;  unless  the  taxes  are  paid 
the  property  shall  be  sold  for  the  payment  thereof  as  nearly  as 
may  be,  in  the  manner  in  which  such  property  when  duly  ren- 
dered is  required  to  be  sold,  and  the  sale  shall  be  equally  valid. 
Sayles  R.  S.,  Art.  612. 

§  778.     Incorporations  for  school  purposes. 

Towns  and  villages  authorized  to  incorporate  under  this  chap- 
ter, or  having  two  hundred  inhabitants  or  over,  may  form  an  in- 
corporation for  (free)  school  purposes  only,  which  may  include 
within  its  bounds  a  town  or  village  incorporated  for  municipal 
purposes,  the  same  not  having  assumed  control  of  the  public 
schools  within  its  limits;  provided,  that  the  territory  so  incor- 
porated for  (free)  school  purposes  shall  not  exceed  an  area  of 


Cities  and  Towns.  •  445 

twenty-five  square  miles ;  and  when  so  desiring,  an  election  may 
be  held  under  the  provisions  of  this  title  and  chapter,  and  if,  at 
such  election,  a  majority  of  the  votes  cast  be  in  favor  of  the  in- 
corporation, it  shall  be  the  duty  of  the  county  judge  to  make 
return  thereof,  and  cause  a  record  of  the  result  of  such  election  to 
be  made,  the  same  as  provided  for  by  Articles  585  and  586  of  this 
chapter ;  upon  which  entry  being  made,  such  town  or  village  shall 
be  regarded  as  duly  incorporated  for  the  purpose  of  establishing 
and  maintaining  free  schools  therein,  and  shall  upon  notice  to  the 
state  board  of  education  by  the  board  of  trustees  hereinafter  pro- 
vided for,  receive  such  pro  rata  share  of  the  available  school  fund 
as  its  scholastic  population  may  entitle  it  to.  And  provided,  also, 
that  all  school  incorporations  hereafter  formed  under  the  provi- 
sions of  this  act  shall  have  the  right  to  levy  and  collect  taxes  and 
issue  bonds  for  school  purposes,  the  same  as  school  incorpora- 
tions heretofore  formed.  When  a  town  or  a  village  is  included  in 
a  corporation  for  (free)  school  purposes,  and  such  town  or  vil- 
lage shall  afterwards  be  incorporated  for  municipal  purposes,  it 
shall  not  thereby  acquire  a  right  to  take  the  control  of  the  schools 
within  its  limits  out  of  the  hands  of  the  school  corporation.  In- 
dependent school  districts  heretofore  organized  which  have  not 
the  required  population  in  the  town  proper,  but  have  such  popula- 
tion in  the  whole  independent  district,  shall  be  validated  by  this 
act.  (Acts  1893,  p.  175 ;  1897,  p.  45,  1,  2.)  Sayles  R.  S.,  Art. 
616a. 

Cities  incorporated  under  the  general  law  can  not  levy  a  tax  for 
school  purposes  except  under  certain  conditions.  McCombs  v. 
City  of  Rockport,  14  Tex.  Civ.  App.  561;  Constitution,  Art.  11, 
Sec.  10. 

§  779.     Power  of  cities  in  general  to  levy  taxes. 

A  municipal  corporation  possesses  no  inherent  power  to  levy 
taxes.  It  only  possesses  such  power  as  is  expressly  conferred 
upon  it  by  the  legislature.  Not  only  must  the  state  confer  the 
authority  but  when  the  state  has  so  conferred  it,  and  stated  the 
manner  of  its  performance,  such  power  can  only  be  performed 
substantially  in  the  manner  and  mode  pointed  out.  Wood  v.  City 
of  Galveston,  76  Tex.  132,  13  S.  W.  227;  People's  National  Bank 
V.  City  of  Ennis,  50  S.  W.  633 ;  Cooley  on  Taxation,  678. 


446  **■  Taxation  in  Texas. 

§  780.     Tax  can  be  collected  when  void  portion  ascertainable. 

A  city  levied  a  tax  to  pay  interest  and  provide  a  sinking  fund 
on  a  bond  issue  of  $1,400,000.  At  the  time  of  the  levy  only 
$950,000  of  the  issue  had  been  sold,  and  no  tax  could  be  collected 
to  pay  interest  and  provide  a  sinking  fund  on  the  bonds  not  sold. 
Held,  that  the  tax  which  could  be  legally  collected  being  easily 
ascertainable  and  divisible,  only  so  much  of  the  entire  tax  as  was 
not  necessary  for  the  purpose  for  which  it  was  levied  was  void. 
Nalle  V.  City  of  Austin,  42  S.  W.  780. 

§  781.     Duty  of  assessor  and  collector  in  regard  to  collection 
of  taxes. 

The  assessor  and  collector,  after  the  completion  of  the  assess- 
ment roll,  as  required  by  ordinance,  shall  proceed  to  collect  the 
taxes  therein  mentioned  within  the  time,  and  give  such  notice  as 
may  be  prescribed  by  the  city  council,  and  for  that  purpose  shall 
call  once  upon  every  person  taxed,  or  on  the  agent  or  attorney 
of  such  person  at  the  usual  place  of  his  or  her  residence,  office, 
place  of  business,  or  elsewhere,  and  demand  the  payment  of  the 
tax  charged  upon  his  or  her  person  or  property,  if  the  person  is 
to  be  found,  and  if  not,  then  a  written  demand,  specifying  the 
amount  of  the  taxes  due,  left  at  the  residence  with  some  adult 
member  of  the  family,  shall  be  a  sufficient  demand ;  provided,  that 
if  any  person  thus  owing  taxes  has  no  residence,  office  or  place  of 
business,  or  no  agent  in  the  city  or  known  to  the  assessor  and  col- 
lector, then  the  same  demand  shall  not  be  necessary,  and  the  or- 
dinary published  notice  required  by  ordinance  shall  be  sufficient. 
Sayles  R.  S.,  Art.  516. 

§  782.     Property  of  taxpayer  shall  be  levied  and  sold  for  taxes 
when. 

If  any  person  shall  fail,  neglect  or  refuse  to  pay  the  taxes  im- 
f>osed  on  him  and  his  property,  within  the  time  prescribed  by  the 
ordinances  of  said  city,  the  assessor  and  collector  shall,  by  virtue 
of  his  tax  list  and  assessment  roll,  levy  upon  so  much  property 
liable  to  taxation  belonging  to  such  person  as  may  be  sufficient 
to  pay  his  taxes,  and  the  assessor  and  collector  shall  give  notice 
of  the  time,  and  place  of  sale  by  advertisement  in  writing  (if 
not  unknown  property),  the  property  and  amount  of  taxes,  costs 
and  fees  due  thereupon;  such  notice  shall  be  published  in  some 


Cities  and  Towns.  447 

newspaper  published  in  said  city,  and  at  the  expiration  of  such 
notice,  and  on  the  day  therein  specified,  the  assessor  and  collector 
shall  proceed  to  sell  such  property  at  public  auction,  in  front  of 
the  court  house  door  of  the  city,  or  such  building  as  may  be 
used  for  such  purpose ;  provided,  that  when  real  estate  is  offered 
for  sale  the  smallest  portion  of  grounds  (to  be  taken  from  the 
east  side  of  the  premises)  shall  be  sold  for  which  any  person  will 
take  the  same  and  pay  the  taxes,  costs  and  fees.  Sayles  R.  S., 
Art.  517. 

§  783.     Assessor  and  collector  shall  make  deed  to  purchaser 
to  property  sold  for  taxes — Effect  of  deed. 

The  assessor  and  collector  shall,  when  any  property  has  been 
sold  for  the  payment  of  taxes,  make,  execute  and  deliver  a  deed 
for  said  property  to  the  person  purchasing  the  same  and  such 
deed  shall  be  prima  facie  evidence  in  all  controversies  and  suits 
in  relation  to  the  right  of  the  purchaser,  his  heirs  and  assigns,  to 
the  premises  thereby  conveyed,  of  the  following  facts : 

First — That  the  land  or  lot  or  portions  thereof  conveyed  was 
subject  to  taxation  or  assessment  at  the  time  the  same  was  adver- 
tised for  sale,  and  had  been  listed  or  assessed  in  the  time  or  man- 
ner required  by  law. 

Second — That  the  taxes  or  assessment  were  not  paid  at  any 
time  before  sale. 

Third — That  the  land,  lot  or  portion  thereof  conveyed,  had  not 
been  redeemed  from  sale  at  the  date  of  the  deed,  and  shall  be  con- 
clusive evidence  of  the  following  facts  : 

(1)  That  the  land,  lot  or  portion  thereof  sold  was  advertised 
for  sale  in  the  manner  and  for  the  length  of  time  required  by  law. 

(2)  That  the  property  was  sold  for  taxes  or  assessments  as 
stated  in  the  deed. 

(3)  That  the  grantee  in  the  deed  was  the  purchaser. 

(4)  That  the  sale  was  conducted  in  the  manner  prescribed  by 
law. 

And  in  all  controversies  and  suits  involving  the  title  to  land 
claimed  and  held  under  and  by  virtue  of  such  deed,  the  person 
claiming  title  adverse  to  the  title  conveyed  by  such  deed  shall  be 
required  to  prove,  in  order  to  defeat  said  title,  either  that  the  land 
was  not  subject  to  taxation  at  the  date  of  the  sale,  that  the  taxes 
or  assessment  had  been  paid,  that  the  land  had  never  been  listed 


448  Taxation  in  Texas. 

or  assessed  for  taxation  and  assessment  as  required  by  this  title 
or  some  ordinance  of  the  city,  or  that  the  same  had  been  redeemed 
according  to  the  provisions  of  this  title,  and  that  such  redemption 
was  made  for  the  use  and  benefit  of  the  person  having  the  right 
of  redemption  under  the  law;  but  no  person  shall  be  permitted  to 
question  the  title  acquired  by  the  said  deed  without  first  showing 
that  he,  or  the  person  under  whom  he  claims  title,  had  title  to 
the  land  at  the  time  of  the  sale,  or  that  the  title  was  obtained  after 
the  sale,  and  that  all  taxes  due  upon  the  lands  have  been  paid  by 
such  person  or  the  person  under  whom  he  claims  title  as  aforesaid, 
provided,  however,  that  the  owner  of  such  property  shall  have 
the  right  to  redeem  the  same  at  any  time  within  two  years  of  the 
day  and  date  of  the  sale  thereof,  upon  paying  to  the  purchaser 
double  the  amount  of  taxes  for  which  the  same  was  sold,  together 
with  the  costs  of  such  sale  and  double  the  amount  of  all  taxes 
paid  by  the  purchaser  since  such  sale.  The  assessor  and  collector 
shall  have  full  power  to  levy  upon  any  personal  property  to  sat- 
isfy any  tax  imposed  by  this  title ;  all  taxes  shall  be  a  lien  upon 
the  property  upon  which  they  are  assessed,  and  in  case  any  prop- 
erty levied  upon  is  about  to  be  removed  out  of  the  city,  the  as- 
sessor and  collector  shall  proceed  to  take  into  his  possession  so 
much  thereof  as  will  pay  the  taxes  assessed  and  costs  of  collec- 
tion.   Sayles  R.  S.,  Art.  518. 

§  784.     Sale  may  take  place  at  another  time  than  that  first 
advertised  when. 

If  from  any  cause  the  sale  of  property  levied  upon  or  seized  for 
taxes  shall  not  take  place  at  the  time  first  appointed,  the  assessor 
and  collector  shall  appoint  some  other  time,  give  like  notice  and 
proceed  to  sell  such  property  in  the  manner  prescribed  in  the  first 
instance,  and  in  case  such  property  levied  upon  or  seized  for  taxes 
can  not  be  sold  on  the  day  advertised,  such  sale  may  be  postponed 
from  day  to  day  until  completed,  of  which  postponement  the  as- 
sessor and  collector  shall  give  verbal  notice  at  the  expiration  of 
sale  each  day.    Sayles  R.  S.,  Art.  519. 

§  785.     Property  shall  be  struck  off  to  city  when. 

If  at  any  sale  of  real  or  personal  property  or  estate  for  taxes 
no  bid  shall  be  made  for  any.  parcel  of  land  or  any  goods  and 
chattels,  the  same  shall  be  struck  off  to  the  city,  and  thereupon  the 
city  shall  receive,  in  the  corporate  name,  a  deed  for  said  property, 


Cities  and  Towns.  449 

and  shall  be  vested  with  the  same  right  as  other  purchasers  at 
such  sale,  and  shall  have  power  to  sell  and  convey  the  same. 
Sayles  R.  S.,  Art.  520. 

§  786.     Levy  of  taxes. 

City  taxes  have  to  be  levied  by  an  ordinance  of  the  city  council 
and  such  levies  must  be  proved  in  order  to  enforce  collections  of 
such  tax.    Greer  v.  Howell,  64  Tex.  689. 

Where  in  fact  no  levy  was  made  no  levy  can  be  proved  and 
the  tax  for  the  years  no  levies  were  made  is  invalid. 

In  the  exercise  of  the  taxing  power  by  municipal  corporations 
the  authority  conferred  is  to  be  strictly  construed,  and  must  be 
closely  followed.  Frosh  v.  City  of  Galveston,  7Z  Tex.  409 ;  Wood 
V.  City  of  Galveston,  76  Tex.  132. 

And  fair,  reasonable  doubt  concerning  the  existence  of  a  power 
in  a  city  is  resolved  by  the  courts  against  the  corporation.  Wil- 
liams V.  Davidson,  43  Tex.  34;  City  of  Galveston  v.  Loonie,  54 
Tex.  525 ;  Brenham  v.  Water  Co.,  67  Tex.  554 ;  Wood  v.  Galves- 
ton, 76  Tex.  132 ;  Lufkin  v.  Galveston,  73  Tex.  — . 

A  municipality  can  impose  no  taxes  except  those  authorized 
by  statute,  and  the  method  prescribed  by  statute  must  be  strictly 
pursued.     1  Desty  on  Taxation  475. 

In  levying  taxes  for  municipal  purposes  municipalities  are 
bound  by  the  limitations  in  their  charters.  1  Desty  on  Taxation 
464. 

In  the  exercise  of  the  taxing  power  by  municipal  corporations 
the  authority  conferred  is  to  be  strictly  construed,  and  must  be 
closely  followed.  Frosh  v.  City  of  Galveston,  73  Tex.  409,  11 
S.  W.  402 ;  Wood  v.  City  of  Galveston,  76  Tex.  132,  13  S.  W.' 
229;  Sedg.  St.  &  Const.  Law,  397;  2  Desty  on  Taxation,  762; 
Burroughs  on  Taxation,  372,  471 ;  Cooley  on  Taxation,  329. 

Taxes  can  not  be  levied  or  collected  at  any  other  time,  or  in 
any  other  manner  than  that  designated  by  law.  1  Desty  on  Tax- 
ation, 467;  Warren  Co.  v.  Klein,  51  Miss.  807;  25  Amer.  &  Eng. 
Ency.  of  Law,  pp.  186,  187,  188,  189,  190. 

§  787.     Record  of  levy. 

Every  essential  proceeding  in  the  course  of  a  levy  of  taxes 
should  appear  in  some  written  and  permanent  form  in  the  rec- 
ords of  the  bodies  authorized  to  act  upon  it;  the  record  being 
usually  the  only  evidence  to  show  that  the  tax  was  duly  levied. 
29 


450  Taxation  in  Texas. 

Absence  of  the  record  from  the  place  provided  for  its  preserva- 
tion, and  in  which  it  ought  to  be  found,  raises  a  presumption  that 
it  never  existed.  25  Amer.  &  Eng.  Ency.  of  Law,  pp.  195,  196, 
197. 

Where  the  statutes  of  a  state  prescribe  a  certain  time  for  the 
levying  court  to  convene  and  levy  taxes,  a  levy  by  it  at  any  other 
time  is  invalid.    Morten  v.  McDearmid  (Ark.),  17  S.  W.  877. 

Where  there  is  a  provision  that  the  city  shall  have  power,  by 
ordinance,  to  annually  levy  and  collect  taxes,  it  requires  action  on 
the  part  of  the  city  council  and  prescribes  that  such  action  shall 
be  evidenced  by  an  ordinance  which  must  be  in  writing,  properly 
passed,  and  recorded  on  the  minutes  of  the  council,  without  this 
action  legally  taken  by  the  council  no  officer  has  any  authority  to 
take  any  steps  to  enforce  the  collection  of  any  sum  whatever,  the 
ordinance  of  the  city  council  bears  the  same  relation  to  the  tax 
rolls,  when  properly  made  up,  that  the  judgment  of  the  court 
does  to  the  execution  issued  for  its  enforcement.  Earle  v.  City 
of  Henrietta,  91  Tex.  303. 

§  788.     Resolution  sufficient  basis  for  suit  when. 

Sayles  Rev.  St.,  Art.  425,  provides  that  the  city  council  shall 
have  power  within  the  city,  "by  ordinance,"  to  levy  and  collect  a 
certain  tax.  The  ordinances  of  a  city  provided  generally  for  the 
collection  of  t-he  tax,  "in  accordance  with  the  statute,"  and  "ac- 
cording to  the  law  and  ordinances  of  said  city."  Held,  that  a 
resolution  by  the  city  council  was  a  sufficient  basis  for  the  institu- 
tion of  an  action  to  collect  the  tax.  Dallas  Title  &  Trust  Co.  v. 
City  of  Oak  Cliff,  27  S.  W.  1036,  8  Tex.  Civ.  App.  217. 

§  789.     Right  to  sue. 

Where  a  city  is  empowered  by  charter  to  levy  and  collect  taxes, 
the  method  provided  in  the  charter  is  not  exclusive,  and  the  city 
may  sue  to  collect  the  tax.  Dallas  Title  &  Trust  Co.  v.  City  of 
Oak  Cliff,  27  S.  W.  1036,  8  Tex.  Civ.  App.  217. 

§  790.     Mandamus — Purpose  of  tax  may  be  shown. 

Though  a  judgment  against  a  town,  on  which  execution  has 
been  returned  unsatisfied,  does  not  adjudicate  the  amount  of  the 
recovery  against  any  particular  fund,  the  liability  on  which  it  was 
rendered  may  be  shown  to  have  been  incurred  for  any  of  the 
purposes  for  which  the  city  may  levy  a  tax ;  and,  where  the  power 


Cities  and  Towns.  451 

to  levy  a  tax  for  that  purpose  has  not  been  exhausted,  mandamus 
will  lie  to  compel  the  levy  of  a  specific  tax  for  the  payment  of 
such  judgment.  Sandmeyer  et  al.  v.  Harris,  27  S.  W.  284,  7  Tex. 
Civ.  App.  515. 

§  791.     Levy— Street. 

Amend.  Const.  1890,  Art.  8,  Sec.  9,  provides  that  no  city  shall 
levy  more  than  25  cents  for  city  purposes,  nor  more  than  15  cents 
"for  roads  and  bridges,"  on  the  $100  valuation,  except  for  the 
payment  of  debts  incurred  before  the  constitutional  amendment 
of  1883;  and,  for  the  erection  of  public  buildings,  streets,  and 
other  permanent  improvements,  not  more  than  25  cents  on  the 
$100  valuation  in  any  one  year.  Held,  that  the  purpose  of  the 
levy  for  "roads  and  bridges,"  empowered  the  legislature  to  au- 
thorize cities  to  levy  such  tax  "for  the  improvement  of  roads, 
bridges,  and  streets,"  and  that  "streets,"  as  included  in  the  power 
to  levy  25  cents  "for  the  erection  of  public  buildings,  streets,  *  *  * 
and  other  permanent  improvements,"  means  streets  acquired  or 
opened  up  by  condemnation,  and  not  the  keeping  thereof  in  re- 
pair.   Sandmeyer  v.  Harris,  27  S.  W.  284,  7  Tex.  Civ.  App.  515. 

§  792.     Inquiry  into  legality  of  corporation  of  town. 

It  was  not  proper  to  inquire  into  the  legality  of  the  corpora- 
tion of  the  city  of  Beaumont  in  this  suit,  if,  indeed,  it  would  be 
proper  to  do  so  in  the  Suit  No.  1,180  (City  of  Beaumont  v.  Wil- 
liam Higgins  and  Wife)  ;  Graham  v.  City  of  Greenville,  67  Tex. 
67,  2  S.  W.  742 ;  Brennan  v.  Bradshaw,  53  Tex.  330 ;  Tisdale  v. 
Town  of  Minonk,  46  111.  9 ;  President,  etc.,  v.  Thompson,  20  111. 
200 ;  Hafmlton  v.  President,  etc.,  24  111.  22 ;  Kettering  v.  City  of 
Jacksonville,  50  111.  41 ;  Tomn  of  Decorah  v.  Gillis,  10  Iowa  234 ; 
Bird  V.  Perkins,  33  Mich.  28.  The  questions  sought  to  be  raised 
here  were  adjudicated  in  the  Cause  No.  1,180  (City  of  Beaumont 
V.  Higgins) .  When  the  supreme  court,  on  the  former  appeal,  in- 
quired into  that  judgment,  and  held  it  void,  it  was  upon  the 
ground,  as  stated  in  the  opinion,  that  the  want  of  jurisdiction  of 
the  district  court  appeared  from  the  face  of  the  record.  Bordages 
V.  Higgins,  1  Tex.  Civ.  App.  43,  19  S.  W.  446,  and  20  S.  W.  184, 
726.  But  as  it  was  held,  on  motion  for  rehearing  on  that  appeal, 
that  the  district  court  did  have  jurisdiction,  the  want  of  it,  there- 
fore, did  not  appear ;  so  the  original  opinion  by  Judge  Marr  that 


452  Taxation  in  Texas. 

there  could  be  no  collateral  inquiry  was  correct.  The  introduc- 
tion in  evidence  by  the  plaintiff  of  the  petition  in  Cause  No.  1,180 
was  proper  to  show  what  had  been  adjudicated,  and  did  not  open 
up  the  questions  then  settled  again ;  hence  the  court  did  not  err 
in  excluding  evidence  to  show  that  Beaumont  was  in  fact  incor- 
porated under  Chapter  11  of  Title  17  of  the  Revised  Statutes,  as 
it  did  not  err  in  sustaining  plaintiff's  demurrer.  Higgins  v.  Bor- 
dages,  28  S.  W.  350. 

§  793.  Ordinance  providing  for  the  issuance  of  bonds — Suffi- 
cient when. 
A  city  ordinance  which,  in  providing  for  the  issue  of  bonds 
payable  in  thirty  years  provides  that  there  shall  be  annually  col- 
lected by  taxation,  to  create  a  sinking  fund,  a  sum  equal  to  one- 
thirtieth  of  the  principal,  and  also  the  amount  of  the  annual  in- 
terest, meets  the  requirements  of  Const.,  Art.  11,  Sees.  5,  7,  re- 
quiring a  city,  when  creating  a  debt,  to  provide  for  the  assess- 
ment and  collection  annually  of  a  sufficient  sum  to  pay  the  inter- 
est, and  to  provide  at  least  two  per  cent  as  a  sinking  fund,  and 
Act  April  29,  1893,  containing  similar  requirements.  Bassett  v. 
City  of  El  Paso,  30  S.  W.  893,  88  Tex.  168. 

§  794.     Cities  of  over  10,000  may  change  rules  of  evidence. 

Const.,  Art.  3,  Sec.  56,  prohibiting  the  legislature  from  passing 
a  local  or  special  law  regulating  the  practice  of  changing  the 
rules  of  evidence  in  a  judicial  proceeding,  does  not  apply  to  acts 
granting  special  charters  to  cities  containing  over  10,000  inhabi- 
tants; such  charters  being  specially  authorized  by  Article  11,  Sec- 
tion 5. 

A  provision  of  the  charter  of  a  city  having  over  10,000  inhab- 
itants that  the  deed  of  its  tax  collector  shall  establish  prima  facie 
title  to  the  property,  under  a  sale  for  non-payment  for  taxes  due 
thereon,  is  constitutional.  Texas  Savings  &  Real  Estate  Inv. 
Assn.  V.  Pierre's  Heirs,  31  S.  W.  426,  10  Tex.  Civ.  App.  453. 

§  795.     Cannot  raise   question  of  corporate   existence  in  tax 
suits. 

In  an  action  by  a  city  against  a  property  owner,  to  recover 
taxes,  defendant  can  not  test  the  validity  of  plaintiff's  actual  and 
long-continued    corporate    existence.     Troutman    v.  McCleskey 


Cities  and  Towns.  453 

(Tex.  Civ.  App.),  27  S.  W.  173,  followed.  Lum  v.  City  of  Bowie 
(Tex.  Sup.),  18  S.  W.  144,  distinguished.  McCrary  v.  City  of 
Comanche,  34  S.  W.  679. 

§  796.     Reincorporation  of  or  abolishing  municipality. 

"Act  April  13,  1891,  provides  a  method  of  abolishing  municipal 
corporations,  and  declares  that  their  property  shall  be  turned 
over  to  the  county  treasurer,  and  applied  to  the  payment  of  the 
municipal  debts.  It  also  provides  that,  if  an  abolished  munici- 
pality is  reincorporated,  the  new  corporation,  upon  majority 
vote  of  the  taxpaying  voters,  may  take  the  property  and  assume 
the  debts  of  the  old  one.  Held,  that  where  the  property  of  the 
former  municipality  was  taken  by  the  new  corporation,  the  bonds 
issued  to  pay  the  indebtedness  on  said  property  were  valid,  al- 
though neither  the  taking  of  the  property  nor  the  assumption 
of  the  debt  was  submitted  to  a  vote  of  the  people."  City  of 
Brownwood  v.  Noel,  43  S.  W.  890. 

§  797.     Revised  Statutes  1895,  Article  487. 

"In  cities  authorized  by  Rev.  St.  1895,  Art.  487,  to  levy  taxes 
not  exceeding  one  and  one-half  per  cent,  on  the  assessed  value, 
the  discretion  of  the  council  in  determining  the  amount  that  will 
be  necessary  to  meet  current  expenses  (which  are  a  first  charge 
against'  the  fund  so  derived)  can  not  be  controlled  in  advance 
by  a  mandamus  compelling  the  levy  of  a  sufficient  portion  of  such 
tax  to  pay  a  judgment  against  the  city. 

"A  judgment  recovered  against  a  city  subsequent  to  January 
1,  1889,  for  an  injury  occurring  prior  to  that  date,  is  a  'debt 
lawfully  contracted  prior  to  the  first  day  of  January,  1889,' 
within  Rev.  St.  1895,  Art.  487,  authorizing  certain  cities,  for  the 
purpose  of  paying  such  debts,  to  levy  and  collect  a  tax  of  25  cents 
on  the  $100  valuation,  in  addition  to  the  amount  levied  for  gen- 
eral purposes. 

"Mandamus  will  lie  to  enforce  such  levy."  City  of  Shennan 
V.  LangJuMt,  40  S.  W.  140,  92  Tex.  13. 

§  798.     Right  of  cities  to   sue   under   charter  provisions*  not 
taken  away  by  general  law. 
"Laws  1895,  p.  53  (Rev.  St.  1895,  Arts.  5232m,  5232k),  pro- 
viding for  the  collection  of  delinquent  taxes,  and  that  municipal 


454  Taxation  in  Texas. 

corporations  shall  have  the  right  to  collect  sucL  taxes  under  its 
provisions,  does  not  take  away  the  authority  given  cities  by 
special  charter  to  collect  by  suit  taxes  due  them. 

"Said  act  does  not  apply  to  proceedings  to  enforce  payment 
of  delinquent  taxes  pending  at  its  adoption."  City  of  San  Antonio 
V.  Berry,  48  S.  W.  496. 

§  799.     City  of  Houston. 

"Sp.  Laws  1889,  Ch.  11,  Sec.  53,  and  Sp.  Laws  1893,  Ch.  5, 
Sec.  50,  forbade  a  city  to  bring  suit  for  the  collection  of  taxes 
assessed  after  a  certain  time,  and  required  it  to  pursue  the  sum- 
mary remedy  of  levy  and  sale;  but  the  purchaser  at  such  sale 
might  sue  the  delinquent  for  the  amount  of  the  tax,  and  50  per 
cent,  thereon,  and  costs  of  advertisement  and  sale,  provided  the 
suit  be  brought  within  one  year  from  date  of  sale.  Sp.  Laws  1895, 
Ch.  1,  Sec.  50,  and  Sp.  Laws  1897,  Ch.  7,  Sec.  40,  repealed  the 
inhibition  against  suit  by  the  city,  and  authorized  the  collection 
of  taxes  by  suit,  and  foreclosure  of  lien.  Held,  that  the  laws 
of  1889  and  1893  were  not  laws  of  limitation,  but  prescribed 
a  method  for  the  collection  of  taxes,  and  hence  a  city  could  main- 
tain suit  for  any  taxes  due,  since  the  laws  of  1895  and  1897  re- 
pealed the  restriction  on  the  city's  right  to  sue."  Link  v.  City  of 
Houston,  59  S.  W.  566. 

The  Houston  City  Charter  of  1903,  which  provides  that  all 
delinquent  taxes  due  the  city  for  the  year  1875  up  to  and  includ- 
ing the  year  1896,  and  for  all  years  to  come,  "may  be  collected 
by  suit,  being  a  copy  of  the  provisions  of  city  charters  granted" 
in  1897  and  1899,  authorizes  the  city  to  sue  for  all  taxes  due  it 
for  the  year  1875,  up  to  and  including  the  year  1896,  and  all 
years  thereafter;  for  the  words  "and  for  all  years  to  come" 
must  mean  the  years  after  1896.  City  of  Houston  v.  Dooley,  89 
S.  W.  777,  40  Tex.  Civ.  App.  371 ;  Selmun  v.  Wolf,  27  Tex.  72; 
Edwards  v.  Morten,  92  Tex.  152,  46  S.  W.  792,  92  Tex.  152; 
Holly  V.  Simmmis,  89  S.  W.  776,  99  Tex.  230. 

§  800.     Bonds  for  existing  debts. 

"Since  Sayles'  Rev.  Civ.  St.,  Art.  986j,  providing  that  an  ordi- 
nance issue  bonds  to  provide  for  existing  debts  shall  adopt  the 
act  authorizing  them  and  recite  its  caption,  has  reference  only 
to  cities  whose  charters  contain  no  authority  to  fund  a  debt,  El 


Cities  and  Towns.  455 

Paso,  whose  charter  (Sp.  Laws  1889,  Sec.  87)  confers  such  au- 
thority, may  issue  bonds  to  provide  for  its  floating  debt  in  the 
manner  provided  in  Sayles'  Rev.  Civ.  St.,  Art.  986j,  without 
reciting  the  caption  or  adopting  the  act."  Conklin  v.  City  of  El 
Paso,  44  S.  W.  880. 

§801.     Tax  on  bonds  sold  to  city. 

"A  tax  based  on  the  issue  of  bonds  is  not  invahdated  by  the 
fact  that  the  bonds  were  sold  to  the  city  which  issued  them  as 
an  investment  for  its  sinking  fund,  which  was  required  by  the 
charter  to  be  invested  in  good  interest-bearing  securities."  Conk- 
lin V.  City  of  El  Paso,  44  S.  W.  880. 

§  802.     Majority  of  aldermen   sufficient  to   pass   tax   levying 
ordinance. 

Austin  City  Charter,  Sec.  4,  provides  that  the  city  council  shall 
consist  of  a  mayor  and  board  of  aldermen.  Sec.  13  declares 
that  a  majority  of  the  members  of  the  "whole  council"  shall 
be  necessary  to  pass  any  ordinance  in  any  wise  increasing  or  di- 
minishing the  city  revenues.  Sec.  31  provides  that  in  case  of 
a  tie  vote  by  the  council  the  mayor  shall  have  the  casting  vote, 
and  Sec.  78  provides  that  the  mayor  shall  preside  at  all  meetings 
of  the  city  council,  and  shall  have  a  casting  vote  when  the 
council  is  equally  divided,  but  not  otherwise.  Held,  that  the 
term  "council"  was  used  synonymously  with  the  "board  of  alder- 
men" io  Sec.  13,  and  that  the  "whole  council"  referred  to  meant 
"the  whole  board  of  aldermen,"  as  distinct  from  a  quorum  thereof, 
so  that,  one  of  the  aldermen  having  died  prior  to  the  passage  of 
a  tax  levy  ordinance  passed  by  the  vote  of  seven,  such  ordinance 
should  be  considered  as  having  received  a  majority  of  the  whole 
board  or  council.  Nalle  v.  City  of  Austin,  93  S.  W.  141,  41  Tex. 
Civ.  App.  423. 

§  803.     Interest. 

"Where  the  charter  of  a  city  itself  created  a  liability  for  inter- 
est on  unpaid  city  taxes,  no  ordinance  was  necessary  to  make 
such  provision  operative."  Nalle  v.  City  of  Austin,  93  S.  W. 
142,  93  Tex.  Civ.  App.  423. 

§  804.     Mandamus  will  not  lie  to  compel  a  city  to  levy  tax — 
When. 

"Mandamus  will  not  lie  to  compel  a  city  to  levy  a  tax  to  dis- 
charge a  debt,  where  it  does  not  appear  that  the  city  council 


456  Taxation  in  Texas. 

has  been  requested  to  levy  a  tax,  and  fails  and  refuses  to  do  so. 
"Mandamus  will  not  lie  to  compel  a  city  to  levy  a  tax  to  dis- 
charge a  debt,  where  it  does  not  appear  that  there  is  a  necessity 
for  the  levying  of  an  additional  tax  to  enable  the  city  to  pay  the 
debt."  Gutta  Percha  &  Rubber  Mfg.  Co.  v.  City  of  Cleburne, 
107  S.  W.  157. 

§  805.     Ordinance  not  resolution  \yhen. 

"Where  statutes  authorize  a  city  to  levy  a  tax  by  virtue  of  an 
election  to  be  had  under  an  ordinance  passed  for  that  purpose, 
an  election  had  under  a  mere  resolution  is  void."  Miller  v^ 
State,  69  S.  W.  522,  44  Tex.  Crim.  App.  99. 

§  806.     Sufficiency  of  levy. 

"In  an  action  to  recover  on  bonds  issued  under  Acts  1889, 
p.  89,  the  fact  that  the  tax  levied  was  sufficient  for  five  years  to 
pay  the  interest  and  two  per  cent  of  the  principal  of  the  bonds 
makes  a  prima  facie  case  of  the  sufficiency  of  such  tax."  Cass 
County  V.  Wilbarger  Co.,  60  S.  W.  988,  25  Tex.  Civ.  App.  52. 

The  Constitution  places  no  limitation  on  the  Legislature  as 
to  granting  authority  to  cities  of  over  ten  thousand  inhabitants 
as  to  mode  and  manner  of  assessment  and  equalization  of  taxes. 
Scollard  v.  City  of  Dallas,  42  S.  W.  640,  16  Tex.  Civ.  App.  620 ; 
Ferris  v.  Kimble,  75  Tex.  476. 

§  807.     Right  of  town  to  maintain  action. 

"Where  a  city  sued  to  foreclose  a  tax  lien,  the  fact  that  it 
was  incorporated  under  the  general  incorporating  act  did  not 
defeat  its  right  to  maintain  the  action."  Grace  v.  City  of  Bonham, 
63  S.  W.  158,  26  Tex.  Civ.  App.  161. 

"A  municipal  corporaion  can  maintain  a  suit  to  collect  and 
enforce  a  lien  for  taxes.  City  of  Henrietta  v.  Eustis,  26  S.  W. 
619,  87  Tex.  15,  followed."  McCrary  v.  City  of  Comanche,  34  S. 
W.  679;  City  of  Henrietta  v.  Eustis,  26  S.  W.  619,  87  Tex.  15. 

§  808.  Cities  and  towns  may  adopt  general  state  law  in  regard 
to  collecting  taxes. 
"Sayles'  Rev.  Civ.  St.,  Arts.  432,  438,  empowering  cities  to 
provide,  by  ordinance,  for  the  levy  and  collection  of  municipal 
taxes,  are  not  inconsistent  with,  not  repealed  by.  Art.  4760,  which 
makes  the  general  statutory  provisions  as  to  the  sale  of  prop- 
erty for  taxes  applicable  to  the  collection  of  taxes  by  towns  and 


Cities  and  Towns.  457 

cities ;  and  a  city  may  provide,  by  ordinance,  that  municipal  taxes 
shall  become  due  and  delinquent  at  a  different  time  from  general 
taxes."    Enstis  v.  City  of  Henrietta,  37  S.  W.  632. 

§  809.     De  facto  corporation. 

"An  owner  of  property  sold  for  taxes  by  a  city  cannot  avail 
himself  as  a  defense  to  the  tax  deed  of  the  invalidity  of  the 
city's  incorporation,  where  it  is  shown  to  have  been  a  de  facto 
corporation  during  all  the  time  of  its  exercise  of  the  taxing 
power."    Enstis  v.  City  of  Henrietta,  37  S.  W.  632. 

§810.     Bawdy  house  license. 

"A  charter  giving  a  city  power,  by  ordinance,  'to  prevent  and 
punish  the  keeping  of  houses  of  prostitution,  *  *  *  ^^^  ^^ 
adopt  summary  measures  for  the  removal  or  suppression,  or 
license,  taxation,  regulation  and  inspection  of  all  such  establish- 
ments,' does  not  authorize  the  city  to  tax  and  license  bawdy 
houses."    City  of  San  Antonio  v.  Schneider,  37  S.  W.  767. 

§811.     Galveston. 

"Const.  1869,  Art.  12,  Sees.  20,  21,  provide  that  taxes  on  land 
shall  be  a  lien  thereon,  but  that  no  land  shall  be  sold  for  taxes, 
except  under  decree  of  court.  Galveston  City  Charter  1871,  Tit. 
6,  Art,  14,  provides  that  no  sales  of  land  for  taxes  shall  be  made, 
except  under  decree  of  the  Galveston  district  court,  and  that  the 
city  council  may  provide  by  ordinance  for  the  institution  and 
regulation  of  suits  to  enforce  the  lien  of  unpaid  taxes,  except 
that  no  sales  shall  be  made  till  thirty  days'  notice  has  been  given 
the  owner,  which  notice  may  be  actual  or  by  advertisement  for 
sixty  days ;  and  that  the  owner  may  redeem  from  the  sale  at  any 
time  within  two  years,  after  which  time  the  purchaser  may  apply 
for  confirmation  of  the  sale.  Rev.  Ord.  Galveston  1871,  Ch.  39, 
Art.  1,  Sec.  14,  provides  that  the  city  may  foreclose  any  tax  lien 
on  land  when  the  gross  amount  of  taxes  shall  be  $1(X)  or  more, 
and  that  in  rendering  judgment  separate  parcels  shall  be  sepa- 
rately condemned,  except  in  cases  of  lots  in  the  same  block.  Held, 
that  the  jurisdiction  of  the  Galveston  district  court  to  foreclose  a 
tax  Hen  was  a  special  and  limited  statutory  jurisdiction,  and 
hence  a  judgment  foreclosing  a  tax  lien  was  subject  to  collateral 
attack. 

"Where  the  record  of  a  judgment  of  the  Galveston  district 
court  foreclosing  a  tax  lien  showed  that  the  action  was  brought 


458  Taxation  in  Texas. 

to  foreclose  tax  liens  amounting  to  less  than  $100,  that  lots  more 
than  in  one  block  was  condemned  and  sold  together,  that  notice 
of  sale  was  given  by  advertising  for  22  days,  and  that  no  con- 
firmation of  the  sale  was  ever  had,  the  judgment  was  void,  and 
no  title  passed  by  the  sale  made  under  the  judgment."  Cor  dray  v. 
Neuhaus,  61  S.  W.  415,  25  Tex.  Civ.  App.  247. 

§  812.     Cities  over  10,000  not  within  limit. 

"Construing  the  amended  Sec.  9  of  Art.  8  of  the  State  Consti- 
tution, and  Sec.  5,  Art.  11,  the  conclusion  is  announced  that  cities 
of  ten  thousand  inhabitants  are  to  be  exempted  from  the  maxi- 
mum limit  prescribed  for  municipal  governments  as  a  class,  and 
may  levy  ad  valorem  taxes  to  the  extent  of  two  and  one-half  per 
cent  on  the  hundred  dollars'  valuation,  when  so  authorized  by  the 
Legislature."  Lufkin  v.  City  of  Galveston,  63  Tex.  437 ;  Caue 
V.  Mayor,  Alderman  and  Inhabitants  of  the^  City  of  Houston,  65 
Tex.  619. 

The  city  of  Galveston  has  authority  to  levy  an  annual  tax 
of  seven  cents  on  the  one  hundred  dollars'  valuation,  to  provide 
an  emergency  fund.  Lufkin  v.  City  of  Galveston,  63  Tex.  437; 
Cofue  V.  Aldermmi  and  Inhabitants  of  the  City  of  Houston,  65 
Tex.  619. 

§  813.     Tax  for  school  purposes  valid. 

"Act  Tex.,  April  3,  1879,  authorizing  municipal  corporations 
to  take  control  of  the  public  schools  within  their  respective 
limits,  and  to  levy  a  tax  to  support  the  schools  as  free  schools, 
is  not  unconstitutional.     7  S.  W.  726,  affirmed. 

"The  taxation  of  property  for  the  support  of  free  public  schools, 
in  accordance  with  the  Constitution  and  laws  of  a  state,  is  not  a 
taking  of  property  without  due  process  of  law,  within  the  mean- 
ing of  Const.  U.  S.,  14th  Amend."    Werner  v.  City  of  Galveston, . 
12  S.  W.  159. 

§  814.     Implied  authority  to  levy  tax. 

"A  city  was  authorized,  by  one  section  of  its  charter,  to  collect 
an  annual  tax,  not  exceeding  one  per  cent  upon  all  property  within 
its  limits  to  be  used  for  the  'current  expenses'  and  'general  im- 
provement' of  the  city,  and,  by  another  section,  'to  raise  money 
on  the  credit  of  the  city,  for  a  special  and  definite  purpose  by 
issuing  bonds,  or  otherwise,'  provided  that  the  bonded  debt  should 


Cities  and  Towns.  459 

only  be  increased  beyond  a  certain  sum  by  consent  of  the  tax- 
payers voting  at  an  election  for  that  purpose.  Held,  that,  although 
the  power  to  tax  was  not  expressly  conferred  by  the  second 
section,  it  was  necessarily  implied,  and  was  not  therefore  con- 
fined to  the  rate  prescribed  for  'current  expenses'  and  'general 
improvement'  in  the  former  section."  Nalle  v.  City  of  Austin, 
21  S.  W.  375. 

§  815.     Limitations  of  power — Application  of  tax  fund. 

Rev.  St.,  Art.  426,  provides  that  cities  having  more  than  10,000 
inhabitants  may  levy  taxes  authorized  by  law,  but  no  taxes  shall 
for  any  one  year  exceed  two  and  one-half  per  cent  of  the  taxable 
property  of  such  city.  Held,  that  a  city  of  more  than  10,000  in- 
habitants, which  has  no  special  charter,  is  authorized  to  levy  a  tax 
of  one-half  of  one  per  cent  for  protection  against  fire,  one-fourth 
of  one  per  cent  for  improving  the  streets,  and  one-fourth  of  one 
per  cent  for  paying  its  outstanding  indebtedness,  where  the 
whole  levy  does  not  exceed  the  statutory  limit,  since  the  applica- 
tion of  the  tax  fund  is  left  to  the  discretion  of  the  city  authori- 
ties, in  the  absence  of  special  statutory  directions. 

"A  levy  of  a  tax  of  one-fourth  of  one  per  cent  for  improving 
streets  is  not  affected  by  a  levy  for  school  house  purposes  under 
Act  March  23,  1887,  providing  that  a  city,  incorporated  under 
the  general  laws,  may  levy  25  cents  on  the  $100  valuation  of  all 
property  in  such  city  for  current  expenses,  and  a  like  additional 
tax  for  the  purpose  of  constructing  or  purchasing  permanent  im- 
provements, which  includes  building  sites  and  buildings  for  public 
free  schools,  as  such  act  does  not  repeal  Rev.  St.,  Art.  426.  Luf- 
kin  V.  Galveston,  63  Tex.  438,  followed."  Muller  v.  City  of  Deni- 
son,  21  S.  W.  391,  1  Tex.  Civ.  App.  293. 

§816.     Towns  which  may  or  have  abolished  their  corporate 
existence. 

It  shall  be  the  duty  of  the  district  court  of  the  county  in  which 
such  town  or  city,  which  has  abolished  its  corporate  existence,  is 
situated  and  in  which  a  receivership  is  pending,  to  provide  for 
the  payment  of  all  claims  legally  established  against  such  city 
or  town,  and  to  determine  the  priority  of  any  claims,  and  to  order 
the  sale  of  all  property  in  the  hands  of  the  receiver  subject  to 
sale  for  such  purpose,  and  to  direct  such  receiver  to  pay  such 
claims,  and  in  case  the  money  and  proceeds  of  property  are  in- 


460  Taxation  in  Texas. 

sufficient  to  pay  such  indebtedness,  then  it  shall  be  the  duty  of 
said  court,  at  the  request  of  any  creditor,  at  the  first  regular  term 
of  said  court  in  each  year,  to  levy  a  tax  upon  all  the  property 
and  real  and  personal  estate  situated  within  the  limits  of  said  city 
or  town,  as  previously  incorporated,  on  the  first  day  of  the  pre- 
ceding January  not  exempt  from  taxation  under  the  constitution 
and  laws  of  this  state  sufficient  to  discharge  the  indebtedness,  but 
not  to  exceed  the  rate  allowed  by  existing  law  for  such  purposes 
in  incorporated  cities  and  towns.  It  shall  be  the  duty  of  such 
receiver,  in  case  of  levy,  to  assess  all  the  property  all  estate  within 
such  limits  in  the  same  manner  as  is  provided  by  law  for  the 
assessment  of  such  property  by  the  county  assessor,  and  he  will 
value  such  property  the  same  as  the  valuation  placed  thereon  by 
such  assessor  and  the  county  equalization  board,  and  he  will  make 
out  a  tax  roll  and  collect  the  taxes  under  such  levy  and  assess- 
ment in  the  same  manner  and  time  as  is  provided  by  law  for  the 
assessment  and  collection  of  taxes  of  incorporated  cities  and  towns 
under  Title  18  of  the  Revised  Statutes.  Suits  may  be  brought  by 
the  receiver  against  delinquents  and  a  lien  shall  exist  upon  all 
property  for  such  taxes  the  same  as  though  the  corporate  exist- 
ence of  such  city  or  town  had  never  been  abolished,  and  such  levy 
and  assessment  had  been  made  by  its  council  and  assessor.  Act 
of  1905,  p.  327. 

§  817.     Collection  of  taxes  where  corporation  is  abolished. 

Section  1.  That  whenever  under  the  Act  approved  April  17, 
1905,  entitled,  "An  Act  to  provide  for  the  disposition  of  the  cor- 
porate property  and  the  levy,  assessment  and  collection  of  taxes 
to  pay  existing  indebtedness  of  incorporated  cities  and  towns 
which  have  heretofore,  or  may  hereafter  abolish  their  corporate 
existence  and  to  repeal  all  laws  in  conflict  herewith,"  the  district 
court,  having  jurisdiction  in  the  premises,  has  heretofore  ordered, 
or  may  hereafter  order,  the  assessment  and  collection  of  taxes 
for  the  payment  of  the  indebtedness  of  such  town  or  city,  it  shall 
be  the  duty  of  the  county  tax  assessor  for  the  county  in  which 
such  town, or  city  is  situated  to  assess  the  taxes  so  ordered  in  like 
manner  as  taxes  in  rural  school  districts,  and  it  shall  be  the  duty 
of  the  county  tax  collector  for  such  county  to  collect  such  taxes 
in  like  manner  as  taxes  in  rural  school  districts ;  provided,  that  this 


Cities  and  Towns,  "  461 

Act  shall  not  repeal  any  part  of  Sec.  2  of  the  original  Act  approved 
April  17,  1905,  and  being  Ch.  134  of  the  Acts  of  the  Twenty- 
ninth  Legislature. 

Sec.  2.  For  the  services  rendered  under  Sec.  1,  the  assessor 
and  collector  shall  receive  the  same  compensation  as  for  like 
services  for  the  assessment  and  collection  of  taxes  in  rural  school 
districts,  and  it  shall  be  the  duty  of  said  collector  to  pay  such 
taxes  when  collected  to  the  receiver  of  such  city  or  town.  Acts 
Thirty-first  Legislature,  p.  68. 

§  818.     Relating  to  issuance  of  bonds  and  levy  of  taxes. 

Section  1.  That  Art.  486,  Ch.  5,  Title  18,  of  the  Revised  Stat- 
utes of  1895,  be  so  amended  that  the  same  shall  hereafter  read 
as  follows : 

Art.  486.  The  city  or  town  'council  of  any  city  or  town  in  this 
state  incorporated  under  the  general  law  shall  have  the  power 
by  ordinance  to  levy  and  collect  an  annual  ad  valorem  tax  suffi- 
cient to  meet  the  interest  and  sinking  fund  on  all  indebtedness 
legally  incurred  prior  to  the  adoption  of  the  Constitutional 
Amendment  in  1883,  regarding  the  power  of  cities  and  towns  to 
levy  and  collect  taxes,  etc.,  and  may  levy  and  collect  twentyrfive 
cents  on  the  one  hundred  dollars'  valuation  of  all  property  in  such 
city  or  town  for  current  expenses,  and  may  levy  and  collect  an  ad- 
ditional twenty-five  cents  on  the  one  hundred  dollars'  valuation 
for  the  purpose  of  construction  or  the  purchase  of  public  build- 
ings, water  works,  sewers,  and  other  permanent  improvements 
within  the  limits  of  such  city  or  town,  and  shall  also  have  power 
by  ordinance  to  levy  and  collect  a  tax  not  exceeding  fifteen  cents 
on  the  one  hundred  dollars'  valuation  of  property  for  the  con- 
struction and  improvement  of  the  roads,  bridges  and  streets  of 
such  city  or  town  within  its  limits,  and  all  cities  and  towns  pro- 
viding for  such  improvements  shall  have  the  power  to  issue 
coupon  bonds  of  the  city  therefor  in  such  sum  or  sums  as  they 
may  deem  expedient,  to  bear  interest  not  exceeding  six  per  cent 
per  annum ;  provided,  that  the  aggregate  amount  of  bonds  issued 
for  the  construction  or  the  purchase  of  public  buildings,  water 
works,  sewers  and  other  permanent  improvements  shall  never 
reach  an  amount  where  the  tax  of  twenty-five  cents  on  the  one 
hundred  dollars'  valuation  of  property  will  not  pay  current 
interest  and  provide  a  sinking  fund  sufficient  to  pay  the  principal 


462  Taxation  in  Texas. 

at  maturity ;  and  provided,  also,  that  the  amount  of  bonds  issued 
for  street  improvement  purposes  shall  never  reach  an  amount 
where  the  tax  of  fifteen  cents  on  the  one  hundred  dollars'  valu- 
ation of  property  will  not  pay  current  interest  and  provide  a 
sinking  fund  sufficient  to  redeem  them  at  maturity,  and  the 
amount  of  bonds  legally  issued  under  acts  passed  prior  to  the 
adoption  of  the  present  Constitution  shall  not  be  computed  and 
estimated  in  the  amount  of  bonds  which  may  be  issued  for  the 
above-named  city  improvements.  Within  the  meaning  of  this  arti- 
cle shall  be  included  building  sites  and  buildings  for  the  public 
free  schools  and  institutions  of  learning  within  those  cities  and 
towns  which  have  assumed  or  may  assume  hereafter  the  exclu- 
sive control  and  management  of  the  public  free  schools  and  insti- 
tutions of  learning  within"  their  limits.  Acts  Thirty-first  Legisla- 
ture, p.  444. 


CHAPTER  XXXIX. 

SCHOOLS  AND  SCHOOL  DISTRICTS. 

Sec.  Sec. 

819.  Act  of  April  5th,  1907,  fixing       827.  Qualification  of  voter. 

rate    for    free    school    pur-       828.  Bondholders    necessary    par- 
poses,  ties — When. 

820.  Local  taxation  for  school  pur-       829.  Irregularities     will     not     re- 

poses, strain  the  collection  of  tax. 

821.  Levy     for     maintenance — In-       830.  Suflaciency   of   notice    to    im- 

crease  of  levy — Lien.  pose  tax. 

822.  Power  to  levy  tax.  831.  Separate  roll  not  necessary. 

823.  Levy   once    exercised    is    ex-      832.  Cannot  establish  lien — When. 

hausted  for  years.  833.  Defense — Not  available. 

824.  Levy  of  taxes  vested  in  local      834.  Limitations  on  rate. 

boards.  835.  Incorporated   city   or   town — 

825.  Failure  to  designate  levy  by  Limitation  of  tax. 

school  districts  only  an  ir-      836.  Excessive  levy  curative  act. 
regularity.  837.  School  tax — City  council  must 

826.  Action    on    part    of    city    re-  levy. 

quired. 

§  819.     Act  of  April  5,  1907,  fixing  rate  for  free  school  pur- 
poses. 

Section  1.  Be  it  enacted  by  the  Legislature  of  the  State  of 
Texas:  That  Art.  5047,  Ch.  1.  Title  104,  of  the  Revised  Civil 
Statutes  of  1895,  be  so  amended  as  to  hereafter  read  as  follows: 

Article  5047  (4662).  There  shall  be  levied  and  collected  an 
annual  ad  valorem  State  school  tax  of  twenty  cent  for  the  year 
1907  and  every  year  thereafter  on  the  one  hundred  dollars  of  the 
cash  value  thereof,  estimated  in  lawful  currency  of  the  United 
States,  on  all  real  property  situated  and  all  personal  property 
owned  in  the  State  on  the  first  day  of  January  of  each  year,  and 
all  personal  property  sent  out  of  the  State  for  the  purpose  of 
avoiding  the  payment  of  taxes  thereon,  and  afterwards  returned 
to  the  State,  except  so  much  thereof  as  may  be  exempted  by  the 
Constitution  and  laws  of  thi#  State  or  the  United  States,  which 
cash  value  shall  be  estimated  in  the  manner  prescribed  by  law. 
Acts  Thirtieth  Legislature,  p.   141. 


464  Taxation  in  Texas. 

§  820.     Local  taxation  for  school  purposes. 

Section  1.  Be  it  enacted  by  the  Legislature  of  the  State  of 
Texas,  That  Sec.  58,  of  Ch.  124,  of  the  General  School  Laws, 
passed  by  act  of  the  Twenty-ninth  Legislature,  be  amended  so  as 
to  hereafter  read  as  follows: 

Sec.  58.  Whenever  twenty  or  more  qualified  property  tax- 
paying  voters  of  any  district,  or  a  majority  of  the  property  tax- 
paying  voters  of  any  district,  wish,  for  the  purpose  of  taxing 
themselves  for  the  building  of  school  houses  or  supplementing 
the  State  school  fund  appropriated  to  said  district,  and  shall  make 
application  to  the  county  commissioners'  court  duly  signed  by 
them,  said  court  shall  enter  up  an  order  for  an  election  to  be  held 
in  said  district  to  determine  whether  such  tax  shall  be  levied  or 
not;  said  application  shall  designate  the  amount  of  tax  asked 
to  be  levied,  and  the  order  of  said  court  shall  state : 

First — When  said  election  shall  be  held. 

Second — At  what  point  or  points  the  polls  shall  be  opened. 

Third — The  amount  of  tax  to  be  voted  on;  provided,  that  no 
election  shall  be  held  to  determine  the  levy  of  a  tax  exceeding 
20  cents  on  the  $100  valuation  of  property. 

The  commissioners'  court  shall  order  the  -sheriff  to  give  notice 
of  such  election  by  posting  three  notices  in  the  district  for  three 
weeks  before  the  election,  and  the  sheriff  shall  obey  such  order. 
Not  more  than  one  such  election  shall  be  held  in  the  same 
scholastic  year.    Acts  Thirtieth  Legislature,  p.  168. 

§  821.     Levy  for  maintenance — Increase  of  levy — Lien. 

Sec.  57.  The  commissioners'  court  of  any  county  in  this  State 
shall  have  power  to  levy  a  special  tax  for  the  further  maintenance 
of  public  free  schools  and  the  erection  within  each  school  district 
of  a  school  house  or  school  houses;  provided,  a  majority  of  the 
qualified  property  taxpaying  voters  of  the  district  voting  at  an 
election  to  be  held  for  the  purpose  shall  vote  such  tax,  not  to  ex- 
ceed in  any  year  fifty  cents  on  the  one  hundred  dollars'  valua- 
tion of  the  property  subject  to  taxation  in  such  district;  pro- 
vided, that  all  property  assessed  for  school  purposes  shall  be 
assessed  at  the  rate  of  value  of  property  as  said  property  is  as- 
sessed for  state  and  county  purposes. 

Sec.  58.  Whenever  twenty  or  more,  or  a  majority  of  the  prop- 
erty tax-paying  voters  of  a  district  wish  to  tax  themselves  for 


Schools  and  School  Districts.  465 

the  purpose  of  supplementing  the  State  school  fund  appropriated 
to  said  district,  they  shall  make  application  to  the  county  judge, 
who  shall  issue  an  order  for  an  election  to  be  held  in  said  district 
to  determine  whether  such  tax  shall  be  levied.  Said  application 
shall  designate  either  the  specific  rate  of  tax  to  be  levied,  or  a 
rate  of  tax  not  exceeding  fifty  cents  on  the  one  hundred  dollars' 
valuation  of  property,  and  the  order  of  said  judge  shall  state : 

(1)  When  said  election  shall  be  held. 

(2)  At  what  point  or  points  the  polls  shall  be  opened. 

(3)  The  rate  of  tax  to  be  voted  on ;  provided,  that  no  election 
shall  be  held  to  determine  the  levy  of  a  tax  exceeding  fifty  cents 
on  the  one  hundred  dollars'  valuation  of  property,  but  the  propo- 
sition may  be  for  a  specific  tax  rate  within  this  limit  or  "for  a 
school  tax  not  exceeding  fifty  cents  on  the  one  hundred  dollars' 
valuation  of  taxable  property  in  the  district." 

The  county  judge  shall  order  the  sheriff  to  give  notice  of  such 
election  by  posting  three  notices  in  the  district  for  three  weeks  be- 
fore the  election,  and  the  sheriff  shall  obey  such  order.  Not  more 
than  one  such  election  shall  be  held  in  the  same  scholastic  year. 

Sec.  59.  The  county  judge  shall  appoint  a  presiding  officer 
for  each  voting  place  to  hold  said  election,  who  shall  make  due 
return  thereof  as  is  required  by  law  for  holding  a  general  elec- 
tion ;  and  each  person  who  favors  taxation  for  school  purposes 
shall  have  written  or  printed  on  his  ticket,  "For  School  Tax," 
and  each  person  opposed  to  such  taxation  shall  have  written  or 
printed  on  his  ticket,  "Against  School  Tax."  The  ballots  shall 
be  prepared  by  the  county  judge,  and  the  county  shall  bear  the 
expense  of  having  them  printed. 

Sec.  60.  All  polls  for  school  district  elections  shall  be  opened 
at  eight  o'clock  a.  m.  and  shall  be  closed  at  six  o'clock  p.  m.,  and 
none  of  the  officers  holding  such  election  shall  be  entitled  to  com- 
pensation therefor. 

Sec.  61.  All  persons  who  are  legally  qualified  voters  of  this 
State  and  of  the  county  of  their  residence  and  who  are  resident 
property  taxpayers  in  said  district,  shall  be  entitled  to  vote  in 
such  school  district  election,  and  if  at  such  election  a  majority 
shall  vote  for  the  tax,  it  shall  be  declared  by  the  commissioners' 
court  to  have  carried  in  said  district  and  entered  upon  the  records 
of  said  court  to  have  been  carried,  and  in  all  cases  the  returning 

30 


466  Taxation  in  Texas. 

officer  shall  make  a  full  and  complete  return,  as  in  other  elec- 
tions, to  said  court  within  five  days  after  said  election  is  held, 
and  said  return  shall  be  opened  and  counted  at  the  first  meeting 
of  said  court  and  the  result  declared. 

Sec.  65.  If  the  election  be  to  determine  whether  the  tax  shall 
be  increased,  each  voter  favoring  the  increase  of  the  school  tax 
shall  have  written  or  printed  on  his  ballot,  "For  increase  of 
school  tax,"  and  each  voter  opposing  such  increase  shall  have 
written  or  printed  on  his  ballot,  "Against  increase  of  school  tax," 
and  if  a  majority  of  the  votes  cast  be  in  favor  of  increasing  the 
tax,  it  shall  be  increased. 

Sec.  66.  The  county  commissioners'  court  shall,  at  the  time  of 
levying  the  taxes  for  county  purposes,  also  levy  upon  such  school 
district  the  rate  of  tax  said  district  has  voted  upon  itself,  or,  if 
the  proposition  shall  have  been  "for  a  school  tax  not  exceeding 
fifty  cents  on  the  one  hundred  dollars'  valuation  of  taxable  prop- 
erty in  the  district,"  the  commissioners'  court  shall  levy  such  a 
rate  within  that  limit  as  shall  have  been  determined  by  the  board 
of  trustees  of  said  district  and  the  county  superintendent,  and 
certified  to  said  court  by  the  county  superintendent.  It  shall  be 
the  duty  of  the  tax  assessor  to  assess  said  tax  as  other  taxes  are 
assessed,  and  to  make  an  abstract  showing  the  amount  of  special 
taxes  assessed  against  each  school  district  in  his  county,  and  to 
furnish  the  same  to  the  county  superintendent,  on  or  before  the 
first  day  of  September  of  the  year  for  which  such  taxes  are  as- 
sessed ;  and  the  taxes  levied  upon  the  real  property  in  said  dis- 
tricts shall  be  a  lien  thereon,  and  the  same  shall  be  sold  for  unpaid 
taxes  in  the  manner  and  at  the  time  of  sales  for  State  and  county 
taxes  are  assessed  and  collected.  A  special  tax  voted  in  any  dis- 
trict after  the  levy  of  county  taxes  shall  be  levied  at  any  meeting 
of  the  commissioners'  court  prior  to  the  delivery  of  the  assess- 
ment rolls  by  the  assessor.  The  tax  assessor  shall  assess,  and  the 
tax  collector  shall  collect  said  district  taxes  as  other  taxes.  The 
tax  assessor  shall  receive  a  commission  of  one-half  of  one  per 
cent  for  assessing  such  tax,  and  the  tax  collector  a  commission 
of  one-half  of  one  per  cent  for  collecting  the  same.  The  tax 
collector  shall  pay  all  such  taxes  to  the  county  treasurer,  and 
said  treasurer  shall  credit  each  school  district  with  the  amount 
belonging  to  it,  and  pay  out  the  same  in  accordance  with  the  law. 


Schools  and  School  Districts.  467 

Sec.  76.  When  twenty  or  more,  or  a  majority  of  the  qualified 
tax-paying  voters  of  a  school  district,  shall  petition  the  county 
judge,  he  shall  order  an  election  in  the  school  district  from  which 
the  petition  came,  to  determine  whether  or  not  a  majority  of  the 
legally  qualified  property  tax-paying  voters  of  that  district  desire 
the  issuance  of  bonds  as  indicated  in  the  petition  and  the  annual 
levy  of  a  tax  sufficient  to  pay  the  current  interest  on  said  bonds 
and  provide  a  sinking  fund  sufficient  to  pay  the  principal  at  ma- 
turity. Said  election  shall  be  ordered,  held,  and  the  returns 
counted  and  published  as  in  other  school  elections  in  accordance 
with  the  laws  of  this  State,  and  it  shall  not  be  necessary  to  vote 
upon  a  specific  rate  of  tax,  but  the  rate  shall  be  determined  as 
provided  in  Sec.  78  of  this  act. 

Sec.  77 .  If  after  the  results  of  said  election  are  known  it  shall 
appear  that  a  majority  of  the  votes  therein  have  been  cast  in, 
favor  of  the  issuing  of  school  house  bonds,  the  commissioners' 
court  of  the  county  in  which  said  school  district  is  located  shall 
issue  said  bonds  on  the  faith  and  credit  of  said  school  district, 
which  bonds  shall  bear  not  more  than  five  per  cent  interest  per 
annum,  and  shall  run  not  more  than  forty  years ;  provided,  that 
when  the  houses  are  to  be  built  of  wood  the  time  of  the  bonds 
herein  provided  for  shall  not  be  more  than  twenty  years.  The 
said  bonds  shall  be  examined  by  the  Attorney  General  of  the  State 
of  Texas,  and  registered  by  the  Comptroller  of  Public  Accounts 
of  the  State  of  Texas.  They  shall  be  sold  to  the  highest  bidder 
and  the  purchase  money  shall  be  placed  in  the  county  treasury 
to  the  credit  of  said  school  district  and  the  money  shall  be  dis- 
bursed upon  warrants  issued  by  the  trustees  of  said  district,  ap- 
proved by  the  county  superintendent,  in  payment  of  accounts 
legally  contracted  in  buying,  building,  equipping  or  repairing  the 
school  house  or  school  houses  for  such  district,  or  in  the  purchase 
of  sites  therefor;  provided,  that  the  commissioners'  court  may 
invest  the  county  permanent  school  fund  in  such  school  district 
school  house  bonds,  and  the  State  Board  of  Education  shall  have 
the  right  to  purchase  such  bonds  on  the  same  conditions  as  it  may 
purchase  other  bonds. 

Sec.  78.  When  the  commissioners'  court  shall  provide  for  the 
issuance  of  such  bonds,  and  each  year  thereafter  so  long  as  the 
bonds  or  any  of  them  are  outstanding,  said  court  shall  levy  a 
tax  not  to  exceed  twenty-five  cents  on  the  one  hundred  dollars' 


468  Taxation  in  Texas. 

valuation  of  taxable  property  of  said  school  district,  sufficient  to 
pay  the  interest  on  the  bonds  and  to  produce  a  sinking  fund, 
which,  together  with  the  interest  thereon  when  placed  at  interest, 
shall  be  sufficient  to  pay  the  principal  of  said  bonds  at  maturity. 
The  rate  of  such  tax  shall  be  determined  by  the  trustees  of  the 
district  and  the  county  superintendent  and  certified  by  the  county 
superintendent' to  the  commissioners'  court;  provided,  that  the 
rate  of  the  bond  tax,  together  with  the  rate  of  special  local  tax 
of  the  district  for  the  maintenance  of  schools  therein,  shall  never 
exceed  fifty  cents  on  the  one  hundred  dollars'  valuation  of  taxable 
property  of  said  school  district,  but  if  the  rate  of  bond  tax  certi- 
fied by  the  county  superintendent  to  the  commissioners'  court, 
together  with  the  rate  of  maintenance  tax  previously  voted  in  the 
district,  shall  at  any  time  exceed  fifty  cents  on  the  one  hundred 
dollars,  such  bond  tax  shall  operate  to  reduce  the  maintenance 
tax  to  the  difference  between  the  rate  of  the  bond  tax  and  fifty 
cents.  Said  school  district  bond  tax  shall  be  assessed  and  col- 
lected in  the  manner  provided  by  law  for  the  assessment  and  col- 
lection of  the  special  local  tax  for  the  maintenance  of  public  free 
schools ;  provided,  that  the  rate  of  school  tax  certified  to  the  com- 
missioners' court  by  the  county  superintendent  shall  be  the  rate 
to  be  levied  by  the  commissioners'  court  in  the  school  district 
until  a  change  in  such  rate  shall  be  recommended  by  the  county 
superintendent  and  board  of  trustees  of  the  district  within  the 
limits  prescribed  by  law. 

Sec.  80.  Whenever  the  county  judge  in  any  county  in  the  state 
of  Texas  shall  have  found  it  lawful  and  necessary  to  order  an 
election  for  school  house  bonds,  as  provided  herein,  said  county 
judge  shall  prepare  proper  ballots  for  use  in  said  school  district 
election,  and  the  county  shall  bear  the  expense  of  having  such 
ballots  printed ;  and  each  person  who  favors  the  issuance  of  bonds, 
and  the  levy  of  a  tax  therefor,  shall  have  written  or  printed  on 
his  ballot,  "For  the  Bonds,"  and  each  person  opposed  to  such 
taxation  shall  have  written  or  printed  on  his  ballot,  "Against 
the  Bonds." 

Sec.  81.  The  said  school  district  school  house  bonds  shall  ex- 
press on  their  face :  The  State  of  Texas,  the  name  of  the  county, 
and  the  number  or  corporation  name  of  the  district  issuing  said 
bonds ;  provided,  the  bonds  shall  not  run  more  than  forty  years, 


Schools  and  School  Districts.  469 

and  shall  bear  not  more  than  five  per  cent  interest  per  annum, 
and  shall  never  be  sold  below  par.  It  shall  be  the  duty  of  the 
State  Superintendent  of  Public  Instruction  to  prepare  as  many 
as  three  sets  of  plans  for  public  school  buildings,  the  said  plans 
being  designed  to  meet  the  needs  of  rural  schools  of  various  sizes, 
and  upon  request  of  the  trustees  of  any  school  district  shall  fur- 
nish copies  of  such  plans  and  specifications. 

Sec.  154.  Trustees  of  incorporated  districts  that  have  been 
or  may  hereafter  be  incorporated  under  general  or  special  laws, 
for  school  purposes  only,  shall  have  power  to  levy  and  collect 
an  annual  ad  valorem  tax  not  to  exceed  fifty  cents  on  the  one 
hundred  dollars  valuation  of  taxable  property  of  the  district  for 
the  maintenance  of  schools  therein,  and  a  tax  not  to  exceed  twen- 
ty-five cents  on  the  one  hundred  dollars  for  the  purchase  of  sites 
and  the  purchasing,  construction,  repairing  or  equipping  public 
free  school  buildings  within  the  limits  of  such  incorporated  dis- 
tricts; provided,  that  the  amount  of  maintenance  tax,  together 
with  the  amount  of  bond  tax  of  the  district,  shall  never  exceed 
fifty  cents  on  the  one  hundred  dollars'  valuation  of  taxable  prop- 
erty. Said  trustees  shall  have  power  to  issue  coupon  bonds  of 
the  district  for  building  purposes,  to  be  made  payable  not  ex- 
ceeding forty  years  from  date,  in  such  sums  as  they  shall  deem 
expedient,  to  bear  interest  riot  to  exceed  five  per  cent  per  annum ; 
provided,  that  when  such  buildings  are  to  be  wooden  the  bonds 
herein  provided  for  shall  not  run  for  a  longer  period  than  twenty 
years;  provided  that  the  aggregate  amount  of  bonds  issued  for 
the  above-named  purpose  shall  never  reach  such  an  amount  that 
the  tax  of  twenty-five  cents  on  the  hundred  dollars'  valuation  of 
property  in  the  district  will  not  pay  current  interest  and  provide 
a  sinking  fund  sufficient  to  pay  the  principal  at  maturity,  and 
provided  further,  that  no  such  tax  shall  be  levied  and  no  such 
bonds  issued  until  after  an  election  shall  have  been  held  wherein  a 
majority  of  the  tax-paying  voters  voting  at  said  election  shall  have 
voted  in  favor  of  the  levying  of  said  tax,  of  the  issuance  of  said 
bonds,  or  both,  as  the  case  may  be ;  provided,  that  the  specific 
rate  of  tax  need  not  be  determined  in  the  election.  Acts  Thir- 
ty-first Legislature,  pp.  18,  19,  20,  21,  22. 

§  822.     Power  to  levy  tax. 

"District  boards  of  education  being  recognized  by  the  Consti- 
tution, this  court  fails  to  perceive  any  difference  between  them 


470  Taxation  in  Texas. 

and  municipal  corporations,  to  which  it  is  admitted  the  taxing 
power,  or  power  under  the  law  to  make  assessments,  may  be  dele- 
gated." D.  P.  Kinney  et  al.  v.  G.  B.  Zimpleman  et  al.,  36  Tex. 
554;  The  State  of  Texas  v.  Paul  Bremond,  38  Tex.  116;  A.  B. 
Hall  V.  The  Houston  &  Texas  Central  Railway  Company,  39 
Tex.  286. 

§  823.     Levy  once  exercised  is  e'Schausted  for  years. 

"The  discretionary  power  vested  by  law  in  a  board  of  school 
directors,  regarding  the  levying  of  taxes  for  school  purposes, 
when  once  exercised,  is  exhausted  for  the  year  in  which  the  levy 
is  made;  and  their  successors  in  office  can  not  levy  a  different 
school  tax  for  that  year."  A.  Olliver  et  al.  v.  C.  Carsner,  39  Tex. 
396. 

§  824.     Levy  of  taxes  vested  in  local  boards. 

"The  levy  of  the  one  per  cent  school  tax  was  unconstitutional. 
The  Constitution  contemplated  the  management  and  direction  of 
the  public  schools,  and  the  disbursement  of  the  funds  collected  by 
taxes  imposed,  to  be  vested  in  local  boards  in  the  school  districts, 
subject  to  the  supervision  of  the  superintendent  of  public  in- 
struction; and  the  statute  created  a  central  board  composed  of 
the  governor,  attorney-general  and  superintendent,  and,  in  effect, 
vested  in  it  the  absolute  power  of  control  and  direction  of  the 
local  boards.  The  statute  was  a  perversion  of  the  provisions 
of  the  Constitution  in  the  establishment  of  a  public  school  system, 
which  erected  a  central  power  unknown  to  the  Constitution,  de- 
structive of  the  constitutional  rights  of  the  local  authorities,  and 
a  dangerous  engine  of  political  power."  A.  J.  Sumt,  Adm'r  of 
Whitmore,  v.  The  State,  48  Tex.  120;  The  State  v.  G.  D.  Kelley 
et  al,  43  Tex.  667. 

§  825.  Failure  to  designate  levy  by  school  districts  only  an 
irregularity. 
"It  is  objected  that  the  indebtedness  to  teachers  was  by  the 
school  districts,  not  by  the  county,  and  that  the  tax  authorized  by 
the  act  to  be  levied  was  on  the  school  districts  separately,  not  on 
the  county,  and  that  the  tax  actually  levied  was  on  the  county. 
Acts  Fifteenth  Legislature,  Ch.  80,  pp.  89,  90.  It  appears,  how- 
ever, from  the  sworn  answer,  that  the  one-sixth  of  one  per  cent 
levied  on  the  county  to  pay  indebtedness  to  teachers  was  in  fact 


Schools  and  School  Districts,  471 

estimated  as  the  amount  necessary  in  each  school  district  for  that 
purpose,  after  comparing  the  indebtedness  of  each  school  district 
with  the  amount  of  its  taxable  property.  We  do  not  think  the 
manner  in  which  this  tax  was  levied  was  that  intended  I5y  the 
law;  but  under  the  averments  of  the  sworn  answer,  we  do  not 
think  that  this  irregularity  entitled  plaintiff  to  enjoin  the  col- 
lection of  the  tax.  The  right  amount  appears  to  have  been  levied 
for  each  district,  and  the  failure  to  designate  it  by  districts  is 
no  such  injury  to  plaintiff  as  will  support  an  injunction."  Texas 
&  Pacific  R'y  Co.  v.  Harrison  County  et  al.,  54  Tex.  124. 

§  826.     Action  on  part  of  city  required. 

"The  charter  of  El  Paso  (Sp.  Laws  1889,  p.  50),  providing  for 
a  tax  of  one  per  cent  to  maintain  public  schools,  and  Act  1893 
(Sp.  Laws,  p.  43),  amending  the  charter  by  providing  for  a  tax 
of  two  per  cent  for  that  purpose,  do  not  form  the  city  into  an 
independent  school  district  without  action  on  its  part  in  accord- 
ance with  the  statute."  Conklin  v.  City  of  El  Paso,  44  S.  W. 
880. 

§  827.     Qualification  of  voter. 

"Rev.  St.,  Art.  3942,  referring  to  elections  held  in  school  dis- 
trict created  by  the  commissioners'  court  under  the  provisions  of 
Ch.  10,  provides  that  'all  persons  who  are  legal  qualified  voters 
of  the  state  and  of  the  county  of  their  residence,  and  who  are  resi- 
dent taxpayers  in  said  district,  as  shown  by  the  last  assessment 
rolls  of  the  county,  shall  be  entitled  to  vote  in  any  such  school 
districts.'  Held,  not  intended  to  require  any  additional  qualifica- 
tion to  entitle  a  person  to  vote  at  an  election  to  determine  whether 
or  not  a  tax  should  be  levied  for  school  purposes,  to  those  pre- 
scribed by  Const.,  Art.  7,  Sec.  3,  authorizing  the  levy,  'providing, 
that  two-thirds  of  the  qualified  tax-paying  voters  of  the  district 
voting  at  an  election  to  be  held  for  that  purpose  shall  vote  such 
tax,'  and  that  the  clause,  'as  shown  by  the  last  assessment  rolls 
of  said  county,'  merely  designates  a  method  of  ascertaining  who 
are  taxpayers  of  a  district,  and  does  not  restrict  the  right  to 
vote  at  such  election  to  those  only  whose  names  appear  on  the 
last  assessment  rolls  of  the  county,  as  the  next  succeeding  article 
provides  that  a  voter  may  be  challenged,  and  that  he  shall  be 
entitled  to  vote  if  he  swears  that  he  is  qualified,  and  is  a  resi- 
dent taxpayer  in  the  district. 


472  Taxation  in  Texas, 

"Rev.  St.,  Art.  3998,  in  relation  to  territory  incorporated  for 
school  purposes  only,  under  Ch.  15,  provides  that  no  person 
shall  vote  at  an  election  to  levy  a  tax  for  school  purposes  unless 
he  is  qualified  under  the  constitution  and  laws  of  the  state 
and  is  a  taxpayer  in  the  incorporated  district,  and  Const.,  Art. 
7,  Sec.  3,  authorizes  a  levy,  'provided  that  two-thirds  of  the  qual- 
ified tax-paying-  voters  of  the  district  voting  at  an  election  to  be 
held  for  that  purpose  shall  vote  such  tax.'  Held,  that  a  voter 
is  qualified  thereunder,  though  his  name  does  not  appear  on  the 
last  assessment  rolls  of  the  county  preceding  the  election,  pro- 
vided he  owns  property  within  the  territory  subject  to  taxation." 
Hillsman  v.  Faison,  57  S.  W.  920,  23  Tex.  Civ.  App.  398. 

§  828.     Bondholders  necessary  parties  when. 

"The  holders  of  bonds  are  necessary  parties  to  an  action  to 
restrain  a  school  district  from  levying  a  tax  to  pay  interest  on 
such  bonds."  Boesch  v.  Byrom,  83  S.  W.  18,  37  Tex.  Civ. 
App.  35. 

§  829.     Irregularities  will  not  restrain  the  collection  of  tax. 

"Where  school  trustees  are  declared  elected,  and  they  assume 
to  act  as  such,  the  regularity  of  their  election  cannot  be  questioned 
in  a  collateral  proceeding  to  restrain  the  levy  of  a  tax  voted  by  the 
district  at  an  election,  the  call  for  which  was  participated  in  by 
such  trustees. 

"An  election  by  a  school  district  to  determine  whether  a  tax 
should  be  levied  and  bonds  issued,  which  is  otherwise  regular  and 
valid,  is  not  rendered  invalid  by  the  fact  that  the  school  trustees, 
whose  election  as  such  was  irregular  because  residing  in  territory 
not  then  legally  attached  to  the  district,  participated  in  calling  the 
election  to  determine  the  tax  question. 

"In  the  absence  of  a  showing  that  school  trustees  did  not  act 
for  the  best  interests  of  the  district,  their  act  of  changing  the 
location  of  the  school  building  is  no  ground  for  restraining  a 
levy  of  taxes  ordered  by  the  districf."  Boesch  v.  Byrom,  83  S. 
W.  18,  37  Tex.  Civ.  App.  35. 

§  830.     Sufficiency  of  notice  to  impose  tax. 

"Under  Sec.  31  of  the  Act  and  Const.  Tex.,  Art.  7,  Sec.  3, 
which  authorized  special  elections  within  school  districts  upon 
the  application  of  qualified  tax-paying  voters  thereof,   for  the 


Schools  and  School  Districts.  473 

purposes  of  supplementing  the  school  fund,  or  for  the  erection  of 
school  buildings,  but  fail  to  prescribe  the  form  of  notice  of  such 
election,  the  notice  is  sufficient  if  it  appears  therefrom  that  the 
election  is  to  determine  whether  a  tax  shall  be  imposed  for  school 
purposes."  Reynolds  Land  &  Cattle  Co.  v.  McCabe,  12  S.  W. 
165,  72  Tex.  57. 

§  831.     Separate  roll  not  necessary. 

"Under  Sayles'  Civil  St.,  Art.  3733h,  providing  that  the  tax  as- 
sessor shall  assess  and  the  collector  shall  collect  district  school 
taxes  as  other  taxes,  failure  to  comply  with  the  further  provi- 
sion that  a  separate  tax  roll  shall  be  provided  therefor,  and  entry 
thereof  on  the  margin  of  the  general  state  and  county  rolls,  will 
not  invalidate  the  tax."  Rhomberg  v.  McLaren,  21  S.  W.  571, 
2  Tex.  Civ.  App.  391. 

§  832.     Cannot  establish  lien  when. 

Under  Sayles'  Civ.  St.,  Art.  425a,  providing  that  incorporated 
cities  and  towns  may  levy  a  school  tax  if  such  city  or  town  is  a 
separate  and  independent  school  district,  an  action  to  establish 
a  lien  upon  real  estate  for  unpaid  school  taxes  cannot  be  main- 
tained by  a  city  unless  it  is  averred  and  proved  that  such  city 
has  been  duly  organized  as  a  separate  and  independent  school 
district."  McCombs  v.  City  of  Rockport,  37  S.  W.  988,  14  Tex. 
Civ.  App.  560. 

§833.     Defense— Not  available. 

"Under  Rev.  St.  1895,  Art.  86.  Ch.  15,  giving  school  boards 
full  management  and  control  of  free  schools  within  independent 
school  districts,  where  taxes  were  duly  levied  by  a  board  of  school 
trustees  for  a  special  purpose,  not  including  the  payment  of  pre- 
existing indebtedness,  it  was  no  defense  to  such  taxes  assessed 
against  the  treasurer  of  the  district  that  during  a  previous 
scholastic  year  he  had  paid  out  on  vouchers  issued  by  the  board 
of  trustees  $135.57  more  than  he  had  received,  which  was  more 
than  the  district's  claim  against  him  for  taxes."  Massie  v.  School 
Dist.,  105  S.  W.  821,  47  Tex.  Civ.  App.  349. 

§  834.     Limitations  on  rate. 

"Const.,  Art.  7,  Sec.  3,  authorizes  the  creation  of  independent 
school  districts  by  special  act,  and  without  legal  notice  required  in 
other  acts  of  special  legislation,  and  authorizes  an  additional  tax 


474  Taxation  in  Texas. 

for  the  maintenance  and  erection  of  schools,  provided  that  two- 
thirds  of  the  tax-paying  voters  of  the  district,  voting  at  an  elec- 
tion held  for  that  purpose,  shall  vote  such  tax  not  to  exceed 
20  cents  on  the  $100  on  the  taxable  property  in  the  district,  but 
that  the  limitation  upon  the  amount  of  the  district  tax  shall  not 
apply  to  incorporated  cities  or  towns  constituting  separate  and 
independent  school  districts.  The  amendment  to  the  Constitution 
adopted  September  25,  1883,  and  superseding  Art.  11,  Sec.  10, 
of  the  Constitution,  conferred  authority  on  the  Legislature  to 
constitute  any  city  or  town  a  separate  and  independent  school  dis- 
trict. Held,  that  the  creation  of  two  district  classes  of  independ- 
ent school  districts  was  authorized :  First,  a  class  in  which  an  in- 
corporated city  or  town  may  be  included,  together  with  contigu- 
ous territory  outside  of  the  limits  of  the  city  or  town,  in  which 
district  the  trustees  could  levy  a  special  tax,  not  to  exceed  20 
cents  on  the  $100,  provided  that  two-thirds  of  the  tax-paying 
voters  of  the  district  voted  such  tax ;  and,  second,  a  class  in  which 
the  limits  of  the  school  district  were  confined  to  those  of  a  munici- 
pality, to  which  district  the  constitutional  limitation  of  20  cents 
did  not  apply,  and  hence  a  tax  in  a  district  of  the  first  class, 
levied  by  the  trustees,  in  excess  of  20  cents  on  the  $100,  was  void." 
Brelsford,  Special  Judge,  dissenting  in  part.  Cummins  v.  Gas- 
ton, 109  S.  W.  476;  Snyder  v.  School  Dist.,  Ill  S.  W.  723. 

§  835.     Incorporated  city  or  town — Limitation  of  tax. 

"Const.,  Art.  7,  Sec.  3,  provides  for  an  annual  state  tax  of 
such  an  amount,  not  to  exceed  20  cents  on  the  $100  valuation,  as, 
with  other  available  school  funds,  will  be  sufficient  to  support 
the  public  free  schools  for  not  less  than  six  months  in  each  year, 
and  that  the  Legislature  may  provide  for  the  formation  of  school 
districts  in  counties  and  may  authorize  an  additional  annual  ad 
valorem  tax  within  such  districts  for  school  purposes  upon  vote 
of  the  taxpayers,  not  to  exceed  in  any  one  year  20  cents  on  the 
$100  valuation,  but  that  the  limitation  upon  the  amount  of  dis- 
trict tax  shall  not  apply  to  incorporated  cities  or  towns  consti- 
tuting separate  and  independent  school  districts.  Held,  that  an 
independent  school  district,  incorporated  for  school  purposes  only, 
and  embracing  an  incorporated  town  and  rural  territory,  is  not 
an  'incorporated  city  or  town'  within  the  Constitution,  and  hence 
not  exempted  from  the  restriction  as  to  taxation  therein,  and. 


Schools  and  School  Districts.  475 

where  it  had  previously  voted  a  tax  to  the  full  amount  permitted 
by  the  Constitution,  it  had  exhausted  its  power  to  tax  for  school 
purposes,  and  an  election  held  to  determine  whether  an  additional 
school  tax  should  be  levied  was  void."  Jenkins  v.  DeWitt,  115 
S.  W.  610. 

§  836.     Excessive  levy — Curative  act. 

"If  Act  March  5,  1907  (Sp.  Laws,  Ch.  18),  creating  the  Tulia 
independent  school  district  and  authorizing  the  collection  of  a 
school  tax  to  pay  interest  on  bonds,  and  creating  a  sinking  fund 
therefor  in  excess  of  the  rate  of  20  cents  on  the  $100  in  violation 
of  Const.,  Art.  7,  Sec.  3,  makes  the  school  district  itself  and 
its  bonds  invalid,  nevertheless  such  organization  and  bonds  are 
cured  by  amendment  to  Const.,  Art.  7,  Sees.  3,  3a,  making  valid 
all  districts  theretofore  created  and  their  bonds."  Hutchinson 
V.  Patching,  126  S.  W.  1107. 

§  837.     School  tax — City  council  must  levy. 

"Acts  1900,  p.  19,  Ch.  7,  Sec.  6,  provides  that  in  cities  consti- 
tuting independent  school  districts,  and  where  a  special  tax  for 
school  purposes  has  been  voted  by  the  people  or  fixed  by  special 
charter  not  exceeding  one-half  of  one  per  cent,  the  board  of  trus- 
tees shall  determine  the  amount  of  such  taxes,  within  the  limit 
voted  by  the  people  or  fixed  by  special  charter,  which  shall  be 
necessary  for  the  maintenance  of  the  schools  for  the  current  year, 
and  it  shall  be  the  duty  of  the  city  council,  on  the  requisition 
of  the  school  board,  to  actually  levy  and  collect  such  tax.  Such 
provision  was  re-enacted  in  express  terms  in  Acts  1905,  p.  308, 
Ch.  124,  Sec.  168,  and  other  provisions  of  the  act  provide  for 
an  election  by  the  voters  of  an  incorporated  city  to  determine 
whether  the  city  public  schools  shall  be  under  the  control  of  the 
city  council  or  board  of  trustees,  and  in  express  terms  confers 
on  the  board  of  trustees,  when  that  method  of  administration  is 
adopted,  full  control  of  the  public  schools  within  the  city. 
Held,  that  where  a  city's  schools  were  under  the  control  of  a 
board  of  trustees,  and  such  board  determined  in  its  discretion 
the  amount  of  taxes,  within  the  authorized  limit,  which  should 
be  levied  for  the  ensuing  year,  the  city  council  had  not  discre- 
tion but  to  levy  that  amount  certified."  City  Council  of  Crockett 
V.  Board  of  Trustees,  9B  S.  W.  889,  44  Tex.  Civ.  App.  428. 


CHAPTER  XL. 

INTEREST  AND  PENALTIES. 

Sec.  Sec. 

538.  Constitution.  845.  No   right  to   charge   interest 

539.  Banks.  without  authority. 

840.  Interest    cannot    be    charged       846.  State  entitled  to  interest. 

before  tax  is  due.  847.  Taxes  improperly  enjoined. 

841.  From     date     of     judgment —      848.  Penalty  after  January  3j-St. 

Except.  849.  Statute  must  provide  for  in- 

842.  Not  usurious.  terest. 

843.  Contract    to     pay     taxes    not       850.  No   interest   without   express 

usurious.  provision. 

844.  Damages  in  dissolution  of  in-       851.  Where  part  is  illegal. 

junction. 

§  838.     Constitution. 

Art.  16,  Sec.  11  of  the  Constitution,  regulates  the  interest  to 
be  charged  only  in  cases  of  contract  where  no  rate  is  agreed  on, 
and  does  not  apply  to  cases  not  arising  on  contract,  nor  prohibit 
the  legislature  from  authorizing  the  collection  of  a  higher  rate 
upon  delinquent  taxes.  G.  &  W.  Ry.  Co.  v.  City  of  Galveston, 
96  Tex.  520 ;  74  S.  W.  537. 

§  839.     Banks. 

In  an  action  to  collect  a  delinquent  occupation  tax,  levied  under 
2  Sayles'  Civ.  St.,  Art.  5049,  Subd.  5,  authorizing  such  tax  on 
banks,  it  is  error  to  allow  interest  thereon,  as  not  authorized  by 
statute.    Brooks  v.  State,  58  S.  W.  1033. 

§  840.     Interest  cannot  be  charged  before  tax  is  due. 

"The  heirs  are  not  necessary  parties  to  an  action  to  cancel  a 
tax-deed  by  the  executor  and  sole  devisee,  in  which  defendant 
files  a  plea  in  reconvention  in  the  nature  of  a  cross-action  of  tres- 
pass to  try  title ;  Rev.  St.  Tex.,  Art.  1202,  providing  that  in 
suits  against  a  decedent's  estate,  involving  title  to  realty,  the 
administrator  and  heirs  shall  be  made  parties  defendant. 

"A  tax  to  the  amount  authorized  by  law  becomes  excessive 
where  interest  is  charged  before  it  is  due,  and,  being  partly  illegal, 
a  sale  therefor  is  a  nullity."  Lufkin  v.  City  of  Galveston,  US. 
W.  340,  7Z  Tex.  340. 


Interest  and  Penalties  477 

§  841.     From  date  of  judgment — Except. 

"There  is  no  authority,  that  we  are  aware  of,  to  allow  interest 
upon  taxes  from  the  time  they  were  due,  as  was  done  upon  the 
trial  of  this  case.  Unless  there  be  express  provision  in  the  stat- 
ute that  interest  shall  be  recovered  upon  the  tax  from  the  time 
when  it  should  have  been  paid,  the  courts  have  no  authority  to 
allow  such  interest,  and  a  judgment  for  the  recovery  of  the 
tax  should  bear  interest  only  from  its  date.  Edmonson  v.  City 
of  Galveston,  53  Tex.  157."  McCombs  v.  City  of  Rock  port,  37 
S.  W.  989,  14  Tex.  Civ.  App.  560. 

§  842.     Not  usurious. 

"The  laws  relating  to  usury  pertain  alone  to  obligations  accru- 
ing out  of  contracts,  and  do  not  apply  to  obligations  for  the 
payment  of  taxes."  Nolle  v.  City  of  Austin,  93  S.  W.  141,  41 
Tex.  Civ.  App.  423. 

§  843.     Contract  to  pay  taxes  not  usurious. 

"Where  interest  contracted  for  did  not  exceed  10  per  cent, 
and  it  could  not  be  determined  that  the  amount  of  tax  levies 
would  make  the  interest  and  taxes  exceed  10  per  cent,  a  mort- 
gage securing  the  debt  was  not  usurious  on  its  face  by  virtue  of 
a  provision  requiring  the  borrower  to  repay  all  money  paid  by 
the  lender  for  taxes  and  assessments  on  the  premises,  or  on  the 
bond  and  coupons  or  notes,  or  any  part  thereof."  Norris  v.  W. 
C.  Belcher  Land  Mortg.  Co.,  82  S.  W.  500. 

§  844.     Damages  in  dissolution  of  injunction. 

It  is  proper  to  render  judgment  for  ten  per  cent  damages  on 
the  dissolution  of  an  injunction  restraining  the  collection  of  a  tax. 
R.  G.  R.  R.  Co.  V.  Scanlan,  44  Tex.  649. 

§  845.     No  right  to  charge  interest  without  authority. 

A  judgment  against  the  owner  of  property  for  taxes  due  a 
municipal  corporation,  giving  ten  per  cent  interest  on  taxes  as- 
sessed for  the  time  they  were  due,  is  erroneous,  in  the  absence 
of  authority  allowing  such  interest  conferred  by  statute  or  ordi- 
nance. Edmunson  v.  City  of  Galveston,  53  Tex.  158;  Western 
Union  Tet.  Co.  v.  State,  55  Tex.  314;  Cave  v.  City  of  Houston, 
65  Tex.  619. 


478  Taxation  in  Texas. 

§  846.     State  entitled  to  interest. 

The  state  is  entitled  to  interest  on  such  sum  of  money  as  a 
tax  collector  should  pay  into  the  treasury,  from  date  when  such 
payment  should  have  been  made.  Dean  v.  State,  54  Tex.  313; 
Burnett  v.  Henderson,  21  Tex.  590;  Borden  v.  Houston,  2  Tex. 
598;  Evans  v.  State,  36  Tex.  323. 

§  847.     Taxes  improperly  enjoined. 

The  proper  measure  of  damages  against  one  who  improperly 
enjoins  the  collection  of  taxes  is  interest  on  the  amount  enjoined. 
Rosenberg  v.  Weekes,  67  Tex.  580. 

§  848.     Penalty  after  January  31st. 

If  any  person  shall  fail  or  refuse  to  pay  the  taxes  imposed  upon 
him  or  his  property  by  law  until  the  31st  day  of  January  next  suc- 
ceeding the  return  of  the  assessment  rolls  of  the  county  to  the 
comptroller,  a  penalty  of  ten  per  cent  on  the  entire  amount  of 
such  taxes  shall  accrue,  which  penalty  when  collected  shall  be 
paid  proportionately  to  the  state  and  county.  Laws  1897,  Sec. 
10,  p.  136;  Sayles'  R.  S.,  Sec.  5232j. 

§  849.     Statute  must  provide  for  interest. 

Interest  is  not  recoverable  on  taxes  unless  the  statute  so  ex- 
pressly provides.    Cave  v.  City  of  Houston,  65  Tex.  619. 

Laws  1897,  Ch.  103,  provide  that  subsequent  purchasers  of 
land  previously  sold  to  the  state  for  taxes  shall  be  liable  therefor, 
and  requires  parties  desiring  to  redeem  to  pay  all  taxes  due,  with 
interest  from  Jan.  1,  1885.  Held,  in  case  of  Leogue  v.  State,  that 
though  there  was  no  law  authorizing  the  collection  of  interest  on 
taxes  on  land  sought  to  be  recovered  when  they  were  levied, 
the  imposition  of  interest  thereon  by  such  act  was  not  violation 
of  Const.,  Art.  1,  Sec.  16,  declaring  that  no  retroactive  law  shall 
be  passed,  since  the  state  had  the  power  to  waive  its  tax  title,  and 
in  doing  so  could  prescribe  such  terms  as  it  deemed  just.  No 
attack  was  made  upon  the  sale,  nor  upon  any  of  the  proceedings 
leading  up  to  it,  and  it  stands  before  the  court,  under  the  de- 
fendant's allegations,  as  a  valid  sale,  by  which  title  passed  to 
the  state.  This  conclusion  is  based  upon  the  fact  that  the  title 
in  the  state  is  perfect,  and  it  is  not  intended  to  express  an  opinion 
on  the  question  when  the  proof  does  not  show  this  fact.  Leogue 
V.  State,  57  S.  W.  34,  93  Tex.  553 ;  League  v.  State,  56  S.  W.  262. 


Interest  and  Penalties.  479 

§  850.     No  interest  without  express  provision. 

Unless  there  be  express  provision  in  the  statute  that  interest 
shall  be  recovered  upon  the  tax  from  the  time  when  it  should 
have  been  paid,  the  courts  have  no  authority  to  allow  such  inter- 
est, and  a  judgment  for  the  recovery  of  the  tax  should  bear  in- 
terest only  from  its  date.  McCombs  v.  City  of  Rockport,  14  Tex. 
Civ.  App.  562;  Edmondson  v.  City  of  Galveston,  53  Tex.  157. 

§851.     Where  part  is  illegal. 

"Where  the  items  of  taxes  due  in  an  assessment  were  divisible, 
the  fact  that  a  part  thereof  was  illegal  did  not  relieve  the  tax- 
payer from  liability  for  the  balance;  and,  failing  to  tender  the 
same,  he  became  liable  to  the  interest  and  penalties  allowed  by 
statute."    State  v.  Fulmore,  71  S.  W.  418. 


CHAPTER  XLI. 

RETROSPECTIVE  AND  EX-POST  FACTO  LAWS. 

Sec.  Sec. 

852.  Omitted  property.  856.  Cannot  prescribe  retro-active 

853.  Levy.  penalty. 

854.  iMode  of  procedure.  857.  Remedy  pending  litigation. 

855.  Evidence. 

§  852.     Omitted  property. 

A  city  ordinance,  in  so  far  as  it  merely  provided  for  the  taxa- 
tion of  omitted  property,  held  not  void  as  an  ex-post  facto  law. 
Muir's  Adnt'rs  v.  City  of  Bordstown,  (Ky.)  87  S.  W.  1096. 

§  853.     Levy. 

Legislature  may  legalize  the  levy  and  assessment  of  taxes. 
Boardman  v.  Beckimth,  18  Iowa  292. 

§  854.     Mode  of  procedure. 

The  legislature  has  power  to  adopt  and  legalize  the  acts  of  a 
municipality,  invalid  because  of  irregularities  merely  in  the  mode 
of  a  procedure,  when  there  was  municipal  jurisdiction  of  the 
subject-matter.  2  Desty  on  Taxation,  617;  Tafft  v.  Buffalo,  82 
N.  Y.  202 ;  Butler  v.  Saginaw  Co.,  20  Mich.  22. 

§  855.     Evidence. 

Legislature  has  the  authority  to  provide  that  a  particular 
showing  by  a  party  shall  make  out  in  his  favor  a  prima  facie  case. 
This  it  has  full  power  to  do,  and  it  may  make  the  rules  which  it 
prescribes  apply  to  controversies  previously  in  existence,  even 
through  retrospective  legislation  forbidden  by  the  state  constitu- 
tion. Cooley  on  Taxation,  298 ;  Rich  v.  Flonders,  29  N.  H.  304 ; 
Southwick  V.  Southwick,  49  N.  Y.  510;  Gihhs  v.  Gale,  7  Md.  76; 
Cotifen  V.  McCutcheon,  43  Miss.  207;  Bales  v.  Wadsworth,  23 
Me.  553 ;  Dallas  Title  &  T.  Co.  v.  Oak  Cliff,  27  S.  W.  1039,  8 
Tex.  Civ.  App.  217. 

The  power  of  the  Legislature  to  make  certain  facts  prima  facie 
evidence  is  sustained  in  following  case:  Penn.  Co.  v.  McCann, 
53  Ohio  St.  127,  31  L.  R.  A.  651. 


Retrospective  and  Ex-post  Facto  Laws.  481 

§  856.     Cannot  prescribe  retroactive  penalty. 

A  municipal  corporation  cannot  prescribe  a  retroactive  penalty 
for  neglect  to  pay  taxes  promptly,  nor  the  right  to  prescribe  any 
penalty  unless  expressly  authorized  to  do  so.  City  of  San  Anto- 
nio V.  Raiey,  32  S.  W.  180;  Cave  v.  City  of  Houston,  65  Tex.  619; 
Insurance  Co.  v.  Ray,  50  Tex.  511;  Ryan  v.  State,  5  Neb.  276; 
State  V.  Mayor,  etc.,  8  Vroom  39. 

§  857.     Remedy  pending  litigation. 

A  city  passed  an  ordinance  directing  suit  to  be  brought  for 
taxes  due  when  the  suit  had  already  been  filed.  The  Court  of 
Civil  Appeals  held  that  legislation  affecting  remedies  applies 
to  pending  litigation,  and  that  the  most  that  could  be  legitimately 
contended  for  was  that  the  suit  was  prematurely  brought,  which 
contention  would  involve  merely  a  question  of  costs.  Trust  Co. 
V.  City  of  Oak  Cliff,  81  C.  A.  220. 


31 


CHAPTER  XLII. 

EFFECT  OF  REPEAL  OF  TAX  LAWS. 

Sec.  Sec. 

858.  Whether  taxes  are  to  be  col-       860.  Deed. 

lected   by   law    enforced   at  861.  Retroactive  law  taking  away 
the  time  of  levy  and  if  re-  any   right   unconstitutional, 

pealed  and  when  by  subse-  862.  Redemption, 

quent  legislation.  863.  Repeal  of  former  law. 

859.  City's   rights   under  repealed 

charter. 

§  858.  Whether  taxes  are  to  be  collected  by  law  enforced  at 
the  time  of  levy  and  if  repealed  and  when  by  subse- 
quent legislation. 

The  repeal  of  former  tax  laws  did  not  relinquish  the  right  of 
the  State  to  recover  taxes  previously  levied  but  not  collected. 
Clegg  V.  State,  42  Tex.  605 ;  Harrington  v.  Galveston  Co.,  1  App. 
Civ.,  Sec.  794.  - 

Taxes  levied  under  a  certain  act  are  still  to  be  collected  under 
the  remedies  provided  for  in  that  act,  unless  there  is  an  express 
provision  in  the  subsequent  act.  Harrington  v.  Galveston  Co.,  1 
App.  Civ.,  Sec.  794. 

In  general,  when  a  tax  system  is  revised,  with  a  repeal  of 
the  former  law,  it  is  safe  to  assume  that  the  legislative  intent 
is  that  the  new  enactment  shall  be  of  retrospective  force  only,  and 
shall  not  disturb  existing  valid  assessments.  Cooley  on  Taxation, 
p.  18  and  note  1 ;  Meyers  on  Vested  Rights,  1447  and  1448. 

Where  taxes  are  levied  under  a  law  which  is  repealed  by 
a  subsequent  act,  unless  it  appears  clearly  that  the  Legislature 
intended  the  repeal  to  work  retrospectively,  it  will  be  assumed 
that  it  intended  the  taxes  to  be  collected  according  to  the  law 
in  force  when  they  were  levied.  Oakland  v.  Whipple,  44  Cal.  303  ; 
Auditor-General  v.  Supervisors,  36  Mich.  70 ;  Finn  v.  Haynes,  37 
Mich.  63;  Gerry  v.  Stoneham,,  1  Allen  319;  Conway  zk  Coble, 
37  111.  82. 

In  McPhail  v.  Burris,  42  Tex.  146,  our  Supreme  Court  held 
that :    "The  law  making  the  assessor's  deed  prima  facie  evidence 


Effect  of  Repeal  of  Tax  Laws.  483 

that  all  the  prerequisites  to  the  exercise  of  the  power  to  sell  the 
land  for  taxes  had  been  complied  with,  was  enacted  long  subse- 
quent to  the  sale  of  the  land  by  the  assessor  and  the  execution 
of  the  deed  here  in  question.  To  give  this  subsequent  statute 
application  to  this  deed  and  thereby  vary  and  enlarge  its  legal 
import  from  that  which  it  had  when  enacted  would  bring  the  law 
in  conflict  with  that  provision  of  the  Constitution  which  forbids 
the  passage  by  the  Legislature  of  retroactive  laws." 

The  repeal  of  a  tax  law  can  not  affect  rights  which  have  be- 
come vested  under  the  repealed  law.  Thompson  v.  Common- 
wealth, 81  Pa.  St.  314. 

The  repeal  of  a  law  under  which  a  tax  is  levied,  after  it  is 
laid,  does  not  discharge  the  lien  of  the  tax.  Gardenshire  v. 
Mitchell,  21  Kan.  83 ;  State  v.  Waterville  Savings  Bank,  68  Me. 
515. 

Presumptively,  tax  laws  are  to  have  a  prospective  operation 
only,  and  the  remedies  they  provide  for  collection  will  not  be 
applied  to  taxes  previonsly  laid,  unless  an  intent  that  they  shall 
be  is  clearly  manifest.  1  Desty  on  Taxation,  p.  104  and  notes 
4  and  5. 

Local  laws  or  special  laws  shall  not  be  held  repealed  except 
by  dearly  indicated  purpose  on  the  part  of  the  Legislature.  A 
second  law  without  a  repeal  clause  or  negative  words  does  not 
repeal  a  former  one  unless  its  provisions  are  so  clearly  repugnant 
as  to  imply  a  negative.  A  subsequent  act  does  not  repeal  a  prior 
act  unless  there  is  a  clear  and  strong  inconsistency  between  them. 
1  Desty  on  Taxation,  p.  105 ;  Cooley  on  Taxation,  p.  294;  Welsch 
V.  Cook,  97  U.  S.  543 ;  Beals  v.  Hale,  4  How.  37 ;  Ex  parte  Yeger, 
8  Wall.  85  ;  Commontvealth  v.  Erie  R.  Co.,  98  Pa.  St.  133 ;  United 
States  V.  Taylor,  104  U.  S.  2\6;Pons  v.  State,  49  Mich.  1. 

§  859.     City's  rights  under  repealed  charter. 

"A  city's  right  to  taxes  levied  under  a  former  charter  is  not 
impaired  by  a  subsequent  charter  repealing  all  former  charters, 
without  a  saving  clause  as  to  rights  accruing  thereunder."  Ben- 
nison  v.  Galveston,  78  S.  W.  1089,  34  Tex.  Civ.  App.  382. 

"The  right  to  recover  interest  upon  delinquent  taxes  given  by 
the  former  charter  of  the  city  of  Galveston  was  not  repealed  by 
Sec.  93  of  the  act  granting  its  new  charter  (Laws  27th  Leg.,  p. 
145).     Sections  1,  54  and  60  of  the  new  charter  preserved  such 


484  Taxation  in  Texas. 

right  under  the  former  one.  If  the  new  charter  of  the  city  of 
Galveston  be  held  void  because  of  the  unconstitutionality  of  the 
commission  feature  therein,  the  repealing  clause  fell  with  it, 
leaving  the  former  charter  in  force  and  the  rights  of  action  given 
the  city  thereby  maintainable."  G.  &  W.  Ry.  Co.  v.  City  of 
Galveston,  96  Tex.  520,  74  S.  W.  537. 

"Act  April  3,  1879,  providing  that  the  mayor  shall,  upon  the 
application  of  not  less  than  50  qualified  electors  of  a  city,  call 
an  election  upon  the  question  as  to  whether  the  city  shall  assume 
control  of  schools,  and  whether  such  control  shall  be  by  trustees 
or  the  council,  together  with  Rev.  St.  1879,  Final  Title  20,  which 
provides  that  no  law  of  the  present  session  shall  be  affected  by 
the  repealing  clause  therein,  and  that  laws  in  conflict  therewith 
shall  be  the  law  of  the  State  notwithstanding  the  act,  super- 
seded Rev.  St.  1879,  Arts.  3781,  3782,  providing  that  the  council 
shall,  upon  the  application  of  20  taxpayers,  call  an  election  upon 
the  question  of  assuming  control  of  public  schools,  in  so  far 
as  the  method  of  assuming  control  of  schools  is  concerned;' and 
hence  a  city  acting  under  the  latter  law,  after  Act  April  3,  1879, 
was  passed,  obtained  no  authority  to  control  public  schools  or 
levy  taxes  for  their  support."  Conklin  v.  City  of  El  Paso,  44  S. 
W.  879. 

§  860.     Deed. 

"The  Act  of  February  5,  1842  (Hart.  Dig.,  Art.  3057),  to 
amend  an  act  entitled  an  act  to  raise  a  revenue  by  direct  taxa- 
tion, enacted  that  where  land  was  sold  for  taxes,  the  tax  col- 
lector should  give  the  purchaser  a  certificate,  and  that  if  the 
land  was  not  redeemed  within  one  year,  the  tax  collector,  or 
his  successor  in  office,  should  make  to  the  purchaser  a  quit-claim 
deed,  etc.;  the  Act  of  May  13,  1846  (Hart.  Dig.,  Art.  3106), 
contained  no  provision  respecting  taxes  previously  levied,  nor 
respecting  cases  where  certificates  of  purchase  were  outstanding, 
and  contained  no  words  of  repeal,  but  provided  that  where  sales 
were  afterwards  made  the  deed  should  be  delivered  immedi- 
ately. Held,  that  the  assessor  and  collector  under  the  State  was 
the  successor  of  the  tax  collector  under  the  republic,  but  that 
the  latter  act  substituted  new  and  different  provisions  from 
those  embraced  in  the  former,  comprehending  the  entire  subject- 
matter  and  of  course  effected  an  entire  repeal  of  it,  and  that 


Effect  of  Repeal  of  Tax  Laws.  485 

therefore  the  assessor  and  collector  had  no  authority  to  make 
a  deed  to  a  purchaser  from  his  predecessor,  the  tax  collector 
under  the  law  of  1842,  on  presentation  of  a  certificate,  etc." 
Bryan  v.  Harvey,  11  Tex.  312. 

§  861.     Retroactive   law   taking   away   any   right   unconstitu- 
tional. 

"Const.  Tex.,  Art.  1,  Sec.  16,  providing  that  *no  bill  of  at- 
tainder, ex-post  facto  law,  retroactive  law,  or  any  law  impairing 
the  obligation  of  contracts,  shall  be  made,'  was  intended  to  pro- 
tect every  right,  although  not  strictly  a  right  to  property,  which 
might  accrue  under  existing  laws  prior  to  the  passage  of  any 
law,  which,  if  permitted  a  retroactive  effect,  would  take  away 
such  rights."  Mellinger  v.  City  of  Houston,  3  S.  W.  249,  68 
Tex.  Z7. 

§  862.     Redemption. 

"A  tax  sale  and  the  rights  acquired  thereunder  are  to  be  de- 
termined by  the  law  in  force  at  the  time  of  the  sale."  Bente  v. 
Sullivan.,  115  S.  W.  350. 

§  863.     Repeal  of  former  law. 

"The  repeal  of  former  tax  laws  did  not  relinquish  the  right 
of  the  State  to  recover  taxes  previously  levied,  but  not  collected." 
Clegg  V.  State,  A2  Tex.  605  ;  Harrington  v.  Galveston  Co.,  1  App. 
Civ.  794. 

In  g-eneral,  when  a  tax  system  is  revised  with  a  repeal  of 
the  former  law,  it  is  safe  to  assume  that  the  legislative  intent  is 
that  the  new  enactment  shall  be  of  prospective  force  only  and 
shall  not  disturb  existing  valid  assessments.  Cooley  on  Taxation, 
p.  18  and  note  1 ;  Meyers  on  Vested  Rights,  1447  and  1448. 


CHAPTER  XLIII. 


ADVERSE  POSSESSION. 


Sec. 

Sec. 

864. 

Statutory  provision. 

884. 

865. 

Tax  deed. 

866. 

Must  pay  taxes. 

885. 

867. 

Payment  of  taxes  not  posses- 

sion. 

886. 

868. 

Presumptive  possession. 

869. 

Payment  of  taxes  under  for- 
feited survey. 

887. 

870. 

Pleading  possession. 

888. 

871. 

Limitation. 

872. 

Possession    under    void    deed 

extends  to  what. 

889. 

873. 

Payment    of    taxes    by    ttiird 

890. 

person. 

891. 

874. 

Void    deed   will   not   support 
limitation. 

892. 

875. 

Tract    inclosed    with    others 

and  use  of  part. 

893. 

876. 

Cannot  establish  title  by  pay- 

ment of  taxes — When. 

894. 

877. 

Invalid    tax     dee/3     will    not 

support    limitation. 

895. 

878. 

Must  prove  payment  of  taxes 
on  all  of  tract  claimed. 

896. 

879. 

Tax   roll    evidence    of   pay- 
ment. 

897. 

880. 

Tax    deed    not    good    under 

three  years  statutes — When. 

898. 

881. 

Tax  deed  must  describe  prop- 

erty. 

899. 

882. 

Redemption  period — Not  nec- 
essary   to    re-register    after 

such  period. 

900. 

883. 

In  whose  name  to  be  assessed. 

901. 

Description  of  taxes — Failure 
to  pay  taxes. 

Only  title  of  owner  at  time 
of  sale  passed. 

Payment  shown  without  evi- 
dence of  assessment. 

Tax  deed  will  not  support 
limitation — When. 

Not  entitled  to  hold  against 
purchaser  at  tax  sale — 
When. 

Not  interrupted  by  tax  suit. 

Description  in  assessment. 

Land  must  be  defined. 

Must  pay  taxes  to  acquire  ti- 
tle under  five-years  statute 
of  limitation. 

Presumption  of  for  whom 
paid. 

Voidable  judgment  to  show 
three  years  limitation. 

Tenant  and  landlord. 

Payment  of  taxes  no  proof 
of  possession. 

Payment  of  taxes  on  land 
different  from  location  in 
deed. 

Failure  to  pay  taxes  weakens 
claim  on  land. 

Possession  not  adverse  during 
time  allowed  for  redemp- 
tion. 

Undivided   interest. 

Tax  deed  will  support  statute 
of  limitation. 


§  864.     Statutory  provision. 

The  statute  provides:  Every  suit  to  be  instituted  to  recover 
real  estate  as  against  any  person  having  peaceable  and  adverse 
possession  thereof,  cultivating,  using  or  enjoying  the  same  and 


Adverse  Possession.  487 

paying-  taxes  thereon,  if  any,  and  claiming  under  a  deed  or  deeds 
duly  registered,  shall  be  instituted  within  five  years  next  after 
the  cause  of  action  shall  have  occurred  and  not  afterward.  R.  S. 
1895,  Art.  3342. 

It  is  well  settled  that  the  payment  of  taxes  and  possession 
must  concur.  Snozv'den  v.  Ruch,  76  Tex.  197,  13  S.  W.  189; 
Wall  V.  Club  Land  &  Cattle  Co.,  88  S.  W.  535. 

R.  S.  1895,  Art.  3342,  declares  that  actions  to  recover  real 
estate  as  against  one  having  adverse  possession  and  paying  taxes 
and  claiming  under  a  duly  registered  deed  shall  be  instituted 
within  five  years.  Held,  that  where  a  deed  under  which  a  party 
claimed  purported  to  convey  an  entire  interest  and  the  claim 
under  the  statute  of  limitation  was  the  same,  nothing  less  than 
the  payment  of  all  taxes  for  all  the  years  would  satisfy  the 
statute.    Wall  v.  Club  Land  &  Cattle  Co.,  88  S.  W.  535. 

§  865.     Tax  deed. 

All  the  successive  steps  of  proving  that  the  taxes  were  duly 
assessed  and  other  matters  which  would  show  that  a  lawful 
sale  of  the  land  was  made  must  be  before  a  tax  deed  will  sup- 
port the  three  years'  statute  of  limitation.  Lomberida  v.  Bar- 
wum,  90  S.  W.  700;  Telfener  v.  Dillard,  70  Tex.  140,  7  S.  W. 
847,  70  Tex.  139;  Gillaspie  v.  Murray,  66  S.  W.  252,  27  Tex. 
Civ.  App.  580. 

A  tax  deed  is  a  deed  within  the  meaning  of  Art.  2193,  R.  S. 
1879  (Art.  3342,  R.  S.  1895),  and  will  support  the  plea  of  limi- 
tation of  five  years  without  proof  of  the  prerequisite  necessary 
to  authorize  the  sale  of  the  land  for  taxes.  Lamberida  v.  Bar- 
num,  90  S.  W.  700;  Woffard  v.  McKinna,  23  Tex.  36;  Schleicher 
V.  Gatlin,  85  Tex.  270,  20  S.  W.  120;  Gillaspie  v.  Murray,  66 
S.  W.  252,  27  Tex.  Civ.  App.  580. 

§  866.     Must  pay  taxes. 

The  five-year  statute  of  limitation  does  not  apply,  where 
those  claiming  thereunder  fail  to  show  a  deed  of  record  or  a 
payment  of  taxes.     Watts  v.  Bruce,  72  S.  W.  258. 

§  867.     Payment  of  taxes  not  possession. 

The  payment  of  taxes  on  vacant  lands  by  one  who  has  not 
the  legal  title  thereto  is  evidence  of  an  assertion  of  title,  but  is 
not  equivalent  to  possession.  Texas  Train  &  Lumber  Co.  v. 
Gwin,  67  S.  W.  892,  29  Tex.  Civ.  App.  1. 


488  Taxation  in  Texas. 

§  868.     Presumptive  possession. 

Payment  of  taxes  is  presumptive  evidence  of  possession.  Jack- 
son V.  Deslonde,  1  U.  R.  C.  674,  691. 

§  869.     Payment  of  taxes  under  forfeited  survey. 

"Where  a  survey  under  a  bounty  warrant  became  void  and 
was  forfeited,  after  which  a  railroad  company  had  the  land 
surveyed  under  a  valid  certificate,  payment  of  taxes  prior  to 
such  latter  survey  was  insufficient  to  start  the  five-year  statute 
of  limitations ;  no  taxes  being  legally  due  until  the  succeeding 
March  after  the  railroad  company's  survey,  and  the  land  being 
state  property  after  forfeiture  of  the  survey  on  the  bounty  war- 
rant. 

"Where  a  survey  of  land  under  a  bounty  warrant  to  J.  was 
forfeited,  and  the  land  was  thereafter  surveyed  and  located 
under  a  railroad  certificate,  payment  of  taxes  after  such  sub- 
sequent location  on  the  'J.  certificate'  was  insufficient  to  support 
a  title  under  the  five-year  statute  of  limitations."  Bond  v.  Gar- 
rison, 127  S.  W.  839. 

§  870.     Pleading  possession. 

"An  allegation  that  one  held  land  under  a  tax  deed  is  equiva- 
lent to  alleging  that  he  was  in  possession."  Hamnwns  v.  Clwer, 
127  S.  W.  889. 

§  871.     Limitation. 

"Rev.  St.,  Art.  3193,  providing  for  a  limitation  of  five  years 
where  one  in  possession  claims  'under  a  deed  or  deeds  duly  reg- 
istered,' does  not  apply  to  one  who  claims  under  a  deed  which  is 
void  on  its  fact.    Stayton,  C.  J.,  dissenting. 

"A  tax  deed  is  admissible  for  defendant  in  trespass  to  try 
title  in  support  of  a  plea  of  the  five  years'  statute  of  limitations, 
as  well  as  of  improvements  made  in  good  faith,  without  proof  of 
the  levy  of  the  tax  and  the  usual  prerequisites  to  a  sale  for 
taxes."    Schleicher  v.  Gatlin,  20  S.  W.  120,  85  Tex.  270. 

§  872.     Possession  under  void  deed  extends  to  what. 

Plaintiff  having  entered  under  a  deed  duly  registered  and  de- 
fendant under  a  tax  deed  which  is  void  on  its  face,  the  possession 
of  the  latter  is  confined  to  its  actual  occupancy,  and  notwith- 
standing the  entry  of  defendant,  plaintiff  may  acquire  title  by  ad- 


Adverse  Possession.  489 

verse  possession  to  all  the  land  not  within  the  limits  of  defend- 
ant's actual  occupancy  under  Rev.  St.  Tex.  1879,  Art.  3193, 
limiting  to  five  years  actions  to  recover  real  estate  as  against  any 
person  having  peaceable  and  adverse  possession  and  cultivating, 
using,  or  enjoying  the  land,  and  paying  taxes,"  if  any,  and  claiming 
under  a  deed  duly  registered."  Claiborne  v.  Elkins,  15  S.  W. 
395,  79  Tex.  380. 

§  873.     Payment  of  taxes  by  third  person. 

"Payment  of  taxes  by  a  third  person  for  one  who  claims 
by  adverse  possession  is  the  same  as  payment  by  the  claimant." 
Mariposa  Land  &  Cattle  Co.  v.  Sillimmt,  27  S.  W.  773. 

§  873a.     Payment  on  wrong  tract  of  land. 

"Where  there  was  no  conflict  in  the  original  location  of  the 
adjoining  surveys,  C.  and  D.,  but  thereafter  the  surveyor,  in 
running  out  the  boundaries  and  subdividing  for  sale  the  C.  sur- 
vey, by  mistajce  located  and  marked  one  of  its  boundaries  on  the 
D.  survey,  and  with  reference  to  such  boundary  so  marked  on 
the  ground  a  deed  was  made  to  plaintiff,  purporting  to  convey 
630  acres  of  the  C.  survey  next  to  such  boundary,  payment  by 
plaintiff  of  taxes  assessed  against  such  630  acres  as  part  of  the  C. 
survey  is  not  payment  of  taxes  on  part  of  the  D.  survey  so  in- 
cluded in  the  description,  so  as  to  aid  his  adverse  possession 
thereof."    Hoehn  v.  House,  31  S.  W.  83. 

§  873b.     Not  necessary  to  perfect  title  after  period  has  already 
expired. 

"Where  the  taxes  for  a  year  do  not  become  due  and  payable 
until  after  the  period  necessary  to  perfect  title  under  the  five 
years'  statute  of  limitations  ends,  title  becomes  perfect  under 
the  statute  without  payment  of  the  taxes  for  that  year."  Hal- 
bert  V.  Brown,  31  S.  W.  535,  9  Tex.  Civ.  App.  335. 

§  874.     Void  deed  will  not  support  limitation. 

"A  tax  deed  void  on  its  face  for  ambiguity  of  description  will 
not  support  the  plea  of  five  years'  limitation."  Crumbley  v. 
Busse,  32  S.  W.  438,  11  Tex.  Civ.  App.  319. 

§  875.     Tract  inclosed  with  others  and  use  of  part. 

"To  sustain  a  claim  of  adverse  possession,  under  the  five  years' 
statute,  to  a  tract  inclosed  with  others  into  one  pasture,  it  was 


490  Taxation  in  Texas. 

not  necessary  to  show  payment  of  taxes  on,  or  deed  for,  any  other 
of  the  tracts  inclosed  in  the  pasture. 

"The.inclosure  and  use  of  part  of  a  tract  are  sufficient  to  sus- 
tain an  adverse  claim  to  the  entire  tract  under  the  five  years' 
statute."  Brown  v.  O'Brien,  33  S.  W.  267,  11  Tex.  Civ.  App. 
459. 

§  876.     Cannot  establish  title  by  payment  of  taxes  when. 

"Where  one  purchased  a  stated  number  of  acres  in  a  given  sur- 
vey adjoining  another,  and  it  was  conveyed  to  him  by  metes  and 
bounds,  both  the  grantee  and  the  owner  of  the  adjoining  survey 
supposing  that  the  boundary  given  in  the  deed  was  the  bound- 
ary between  the  surveys,  such  grantee  cannot,  by  the  payment 
of  taxes  on  the  number  of  acres  called  for  in  his  deed,  establish 
an  adverse  possession  'of  a  portion  of  such  adjoining  survey." 
Hull  V.  Woods,  38  S.  W.  256,  14  Tex.  Civ.  App.  590. 

§  877.     Invalid  tax  deed  will  not  support  limitation. 

"The  defendant  having  failed  to  make  the  required  proof, 
his  t^x  deed  was  rightly  held  not  to  confer  on  him  a  valid  title  to 
the  land  in  controversy.  Was  the  possession  acquired  under  it 
a  possession  in  good  faith?  We  think  clearly  not.  He  cannot 
be  a  possessor  in  good  faith  who  acquires  the  possession  from 
one  who  had  no  power  to  give  it,  if  he  either  knew,  or  by  the 
use  of  proper  diligence  might  have  known,  the  want  of  power 
in  his  vendor.  He  who  assumes  the  authority  to  sell  the  land  of 
another  must  produce  his  power  of  attorney,  and  he  who  (308) 
buys  from  an  agent  must  look  to  his  authority ;  because  he  is  not 
the  apparent  owner,  and  his  right  to  sell  depends  on  the  existence 
and  validity  of  the  power  under  which  he  assumes  to  act.  This 
the  purchaser  must  look  to  at  his  peril,  and  he  cannot  protect 
his  purchase  as  an  act  of  good  faith  towards  the  real  owner,  known 
to  be  such,  on  the  ground  that  he  believed  the  pretended  agent 
had  authority  vy^hen,  by  an  examination  of  the  act  or  acts  relied 
on  as  conferring  the  authority,  he  might  have  known  that  he  had 
not.  It  cannot  be  good  faith  towards  the  real  owner  to  take 
and  assert  adverse  possession  of  his  property  under  one  whom 
he  either  knew  or  by  the  use  of  reasonable  diligence  might  have 
known  had  no  authority  to  dispose  of  it.  A  possessor  by  pur- 
chase at  a  sheriff's  sale  surely  could  not  claim  to  be  a  possessor 


Adverse  Possession.  491 

in  good  faith  if  the  sheriff's  deed  was  unsupported  by  a  judg- 
ment and  execution  conferring  on  him  the  authority  to  make 
the  sale."    Robson  v.  O shorn,  13  Tex.  307. 

§  878.     Must  prove  payment  of  taxes  on  all  of  tract  claimed. 

"When  a  registered  deed  is  introduced  to  sustain  the  plea  of  the 
statute  of  limitations  of  five  years,  the  party  claiming  under 
it  must  prove  the  payment  of  the  taxes  for  that  term  upon 
the  whole  of  the  land  specified  in  the  deed."  Kelly  v.  Medlin, 
26  Tex.  48. 

§  879.     Tax  roll  evidence  of  payment. 

In  an  action  to  recover  possession  of  land,  upon  the  ground 
of  plaintiff's  use  and  occupancy  and  payment  of  taxes  thereon 
for  more  than  five  years,  evidence  that  the  land  was  assessed  for 
taxation  against  plaintiff,  and  the  tax  roll  marked  "paid"  for  three 
years,  and  that  it  was  the  invariable  custom  of  the  tax  col- 
lector, when  taxes  were  paid,  to  so  mark  on  the  roll,  did  not 
show,  but  rather  tended  to  repel,  the  fact  of  payment  for  the 
other  two  years."    French  v.  Olive,  3  S.  W.  568,  67  Tex.  400. 

§  880.     Tax  deed  not  good  under  three  years  statutes  when. 

"A  grantee  of  a  tax  title,  though  it  be  over  40  years  old,  who 
did  not  enter  under  the  tax  title  until  nearly  40  years  after  the 
execution  of  the  deed,  and  then  only  for  the  purpose  of  cutting 
timber,  is  not  entitled  to  hold  under  the  Texas  three  years' 
statute  of  limitations,  without  proof  of  compliance  with  the  law 
demanded  in  case  of  tax  titles."  Telfcner  v.  Dillard,  7  S.  W. 
847,  70  Tex.  139. 

§  881.     Tax  deed  must  describe  property. 

"A  tax  deed,  which  is  so  defective  as,  on  its  face,  to  describe 
no  land,  and  to  leave  it  uncertain  whether  the  lines  could  be 
so  run  as  to  contain  the  quantity  called  for,  is  not  a  'deed'  within 
the  meaning  of  the  five  years'  statute  of  limitations,  and  one 
claiming  under  it  can  obtain  no  title  thereby."  Harber  v.  Dyches, 
14  S.  W.  580. 

§  882.     Redemption  period,  not  necessary  to  re-register  after 
such  period. 
"Although  the  registration  of  a  tax  deed  before  the  expira- 
tion of  the  period  of  redemption  does  not  make  it  a  muniment  of 


492  Taxation  in  Texas. 

title,  or  render  it  available  as  a  basis  of  possession,  under  Rev. 
St.  Tex.,  Art.  3193,  which  prescribes  a  limitation  of  five  years  in 
favor  of  one  claiming  under  a  deed  'duly  registered,'  yet,  upon 
the  expiration  of  the  redemption  period,  such  prior  registration 
becomes  good,  and  a  new  registration  is  not  required."  Davis 
V.  Hurst,  14  S.  W.  610. 

§  883.     In  whose  name  to  be  assessed. 

"A  person  in  adverse  possession  is  entitled  to  render  it  for 
taxation  in  the  name  of  the  person  for  whom  he  was  holding, 
or  in  his  own  right  when  holding  for  himself,  in  compliance  with 
Rev.  St.  1895,  Art.  3342,  requiring  the  payment  of  taxes  during 
the  continuance  of  possession,  in  order  to  establish  a  claim  of  title 
by  adverse  possession  in  five  years,  though  other  persons  claiming 
the  same  land  might  at  the  same  time  pay  taxes  thereon."  Thom- 
son V.  Weismmi,  82  S.  W.  503,  98  Tex.  170. 

§  884.     Description  of  taxes — Failure  to  pay  taxes. 

A  party  claiming  title  by  limitation  for  five  years  under  a 
recorded  deed,  read  in  evidence  his  tax  deed  conveying  "one 
thousand  one  hundred  and  seven  acres  of  land  taken  from  the 
league  of  land  originally  granted  to  John  Toole,  lying  and 
being  in  the  country  of  San  Patricio,  on  the  Popalotte,  and  more 
particularly  designated  as  that  part  of  said  league  of  land  claimed 
and  held  by  Thomas  Redmond."  The  land  in  controversy  was 
not  part  of  a  league  granted  to  John  Toole,  but  was  a  separate 
survey  of  one  thousand  one  hundred  and  seven  acres  granted 
to  him.    Held: 

The  deed  did  not  describe  the  land  in  controversy  with  that 
clearness  and  certainty  requisite  to  meet  the  rigid  requirements 
of  the  five  years'  statute  of  limitations. 

A  failure  to  prove  payment  of  taxes  for  any  year  of  the  five 
years'  possession  under  a  deed  recorded  will  be  fatal  to  the 
defense  of  limitation  under  the  five  years'  statute. 

The  mere  failure  of  the  real  Owner  of  land  to  pay  taxes,  or  his 
laches  or  delay  in  bringing  suit  for  its  recovery  against  an  ad- 
verse claimant,  will  not  defeat  his  action,  when  there  has  been 
no  actual  adverse  possession  for  a  sufficient  length  of  time  to 
support  a  plea  of  limitations.    Murphy  v.  Welder,  58  Tex.  235. 


Adverse  Possession.  493 

§  885.     Only  title  of  owner  at  time  of  sale  passed. 

An  action  of  trespass  to  try  title  to  certain  lots,  bought  at  a  sale 
for  taxes  due  on  them,  was  against  persons  holding  them  under 
claim  of  right.  The  defendants  pleaded  the  ten  years'  statute 
of  limitation.    Held : 

(1)  That  if  the  tax  deed  was  valid,  and  any  title  passed,  it 
was  only  such  as  the  real  owner  of  the  land  had  at  the  time  of 
the  sale. 

(2)  That  such  a  purchaser  stands  in  relation  to  persons  in 
possession  under  claim  of  right,  but  with  no  title,  just  as  the 
real  owner  would  stand  had  there  been  no  sale. 

(3)  That  if  there  had  been  no  tax  sale,  and  the  suit  had 
been  instituted  by  the  real  owner  at  the  time  it  was,  if  his  right 
of  action  would  have  been  barred  by  the  statute  of  limitation,  so 
would  that  of  the  purchaser  at  tax  sale,  or  those  holding  under 
him.    Jordan  v.  Higgins,  63  Tex.  150. 

§  886.     Payment  shov/n  without  evidence  of  assessment. 

Proof  of  the  payment  of  taxes,  in  support  of  a  plea  of  limitation, 
is  admissible,  without  reference  to  whether  the  land  was  duly  as- 
sessed for  taxes  or  not.    Haskins  v.  WaUet,  63  Tex.  214. 

§  887.     Tax  deed  will  not  support  limitation  when. 

•  A  tax  deed,  void  for  uncertainty,  or  not  purporting  to  con- 
vey the  land  to  which  the  plaintiff  has  proved  title,  does  not  af- 
ford defendant  a  basis  "of  five  years'  limitation.  (Following 
W afford  v.  McKenna,  23  Tex.  36.)  Berrendo  Stock  Co.  v. 
Kaiser,  66  Tex.  352. 

§  888.     Not  entitled  to  hold  against  purchaser  at  tax  sale  when. 

"Const.,  Art.  8,  Sec.  15,  provides  that  the  annual  land  assess- 
ment shall  be  a  specific  lien,  and  that  all  property,  real  and  per- 
sonal, belonging  to  any  delinquent  taxpayer,  shall  be  liable  to 
seizure  and  sale  for  the  payment  of  all  taxes  and  penalties  due 
by  the  delinquent,  and  may  be  sold  for  the  payment  of  taxes  and 
penalties  under  legislative  regulations.  Sayles'  Ann.  Civ.  St. 
1897,  Art.  5086,  declares  that  all  taxes  on  real  property  shall  be 
a  lien  thereon  until  paid;  and  Art.  3351,  relating  to  limitations, 
provides  that  the  right  of  the  state  shall  not  be  barred  by  any 
provisions  of  that  chapter.  Held,  that  where  defendants,  in  ad- 
verse possession  of  certain  land,  had  not  been  in  possession  for 


494  Taxation  in  Texas. 

the  10  years  required  to  confer  title  when  the  State  instituted 
suit  to  foreclose  its  lien  for  unpaid  taxes,  so  that  they  were  not 
proper  parties  to  such  action,  they  were  still  bound  by  the 
judgment,  thought  not  served  with  notice,  as  provided  by  Sayles' 
Ann,  Civ.  St.  1897,  Art.  5232o,  and  hence  were  not  entitled  to 
hold  the  land  as  against  the  purchaser  from  the  State  and  those 
claiming  under  him."    Patton  v.  Minor,  125  S.  W.  6. 

§  889.     Not  interrupted  by  tax  suit. 

"The  running  of  the  statute  of  10  years'  limitation  in  favor  of 
one  in  adverse  possession  of  land  as  against  the  true  owner  is 
not  interrupted  by  the  foreclosure  of  a  tax  lien  and  a  sale  there- 
under."   Sellers  v.  Simpson,  115  S.  W.  888. 

§  890.     Description  in  assessment. 

"There  was  no  payment  of  taxes  on  certain  land,  necessary  to 
give  title  thereto  by  adverse  possession  under  the  five-year  stat- 
ute, where  the  description  in  the  assessment  was  of  other  lands." 
Sharpe  v.  Kellogg,  116  S.  W.  401;  Loftin  v.  Miller,  118  S.  W. 
913. 

§  891.     Land  must  be  defined. 

"A  claim  of  title  to  land  claimed  under  a  deed  based  on  the 
five-year  statute  of  limitations  cannot  be  maintained  where  for 
some  of  the  years  making  up  the  period  taxes  were  paid  on  some 
undefined  part  of  the  land."    Hoencke  v.  Lomax,  119  S.  W.  842. 

§  892.     Must  pay  taxes  to  acquire  title  under  five  years  statute 
of  limitation. 

"Must  pay  taxes  to  acquire  title  under  five-year  statute  of  limi- 
tations."   Barrera  v.  Guerra,  122  S.  W.  902. 

§  893.     Presumption  of  for  whom  paid. 

"It  is  presumed,  in  trespass  to  try  title  to  land  claimed  by  ad- 
verse possession,  that  one  residing  on  land  under  a  deed  thereto, 
and  who  is  admitted  to  have  paid  the  taxes,  paid  them  for  himself 
and  not  for  another."    Merriman  v.  Blalack,  122  S.  W.  403. 

§  894.     Voidable  judgment  to  show  three  years  limitation. 

"Though  a  tax  judgment  was  voidable,  it  was  admissible  in 
evidence  in  behalf  of  purchasers  at  a  sale  thereunder  in  support 
of  the  three-year  statute  of  limitations."  Carr  v.  Miller,  123  S. 
W.  1158. 


Adverse  Possession.  495 

§  895.     Tenant  and  landlord. 

"Where  a  tenant  purchased  the  leased  land  at  tax  sale,  it  was 
necessary  to  set  the  statute  of  limitations  running  in  its  favor 
under  such  claim  that  it  should  repudiate  its  tenancy  by  notice 
to  the  landlord."  Bryson  &  Ha/rtgrove  v.  Boyce,  92  S.  W.  820, 
41  Tex.  Civ.  App.  415. 

§  896.     Payment  of  taxes  no  proof  of  possession. 

"Proof  that  a  person  for  11  years  paid  taxes  on  a  tract  of 
land  raises  no  presumption  of  possession  by  him  of  the  land." 
Lutcher  v.  Allen,  95  S.  W.  572,  43  Tex.  Civ.  App.  102. 

§  897.     Payment  of  taxes  on  land  different  from  location  in 
deed. 

"One  pays  taxes  on  the  J.  survey,  so  as  to  give  title  under  the 
five-year  statute,  his  receipts  from  the  tax  collector  so  stating 
though  such  survey  is  not  where  the  patent  and  deed  under 
which  he  claims  show  it  to  be  located."  Tarbrough  v.  Moody, 
106  S.  W.  891. 

§  898.     Failure  to  pay  taxes  weakens  claim  for  land. 

"Where,  in  trespass  to  try  title  involving  a  disputed  boundary, 
defendant  pleaded  limitations,  the  fact  that  those  under  whom 
he  claimed  knew  that  the  land  in  dispute  was  not  a  part  of  their 
tract  according  to  survey,  and  it  was  not  assessed  nor  taxes  paid 
by  them,  weakened  the  claim  of  adverse  possession,  and  the 
court  did  not  err  in  refusing  to  instruct  that  such  facts  should 
not  be  considered."    Hunter  v.  Malone,  108  S.  W.  709. 

§  899.     Possession  not  adverse  during  time  allowed  for  re- 
demption. 

"The  possession  by  a  purchaser  of  land  sold  for  taxes  is  not 
adverse  to  the  owner  during  the  two  years  from  the  execution  of 
the  deed  within  which  the  land  may  be  redeemed,  and  limitations 
do  not  begin  to  run  against  the  owner  before  the  expiration  of 
the  redemption  period."    Beatty  v.  O'Harrow,  109  S.  W.  414. 

§  900.     Undivided  interest. 

"As  regards  the  question  of  acquisition  of  title  to  an  undi- 
vided interest  by  adverse  possession  under  the  five-year  statute, 
the  deed  under  which  one  held  possession  having  shown  on  its 
face  that  it  was  intended  to  cover  a  certain  undivided  interest. 


496  Taxation  in  Texas. 

his  payment  of  taxes  on  the  land  will  be  ascribed  to  such  inter- 
est." Yarborough  v.  Whitman,  110  S.  W.  471. 

§  901.     Tax  deed  will  support  statute  of  limitation. 

"But  we  do  concur  in  the  opinion  that  because  it  is  the  deed 
of  the  assessor  and  collector  of  taxes,  it  is  necessarily  wanting  in 
these  requisites.  Such  a  deed  may  be  as  valid  and  effectual  to  vest 
a  title  in  the  grantee  as  a  patent  from  the  government.  If  all 
the  requirements  of  the  law  necessary  to  confer  on  the  officer 
the  power  to  sell  have  been  strictly  complied  with,  the  sale 
and  conveyance,  if  regularly  made  in  pursuance  of  the  power,  will 
vest  in  the  purchaser  a  good  title.  The  difficulty  in  this  class  of 
titles  is  in  proving  the  regularity  of  the  proceedings  necessary 
to  confer  the  power,  which  are  conditions  precedent  to  its  exer- 
cise. But  it  does  not  follow  that  the  conveyance  is  not  a  deed 
because  the  power  of  the  agent  is  not  produced;  the  production 
of  the  power  is  necessary  to  give  effect  to  the  deed,  and  render 
it  operative  to  pass  the  title,  but  not  to  constitute  it  a  deed.  A 
sheriff's  deed  is  inoperative  without  proof  of  his  power  to  sell ; 
it  is  no  evidence  of  title,  without  the  production  of  the  judgment 
and  execution.  And  so  of  every  conveyance  executed  by  an 
agent  or  attorney  in  fact;  the  production  of  the  power  is  nec- 
essary to  complete  the  evidence  of  title.  But  it  cannot  be  said 
that  the  conveyance  is  not  a  deed  until  the  power  is  produced. 
If  the  power  must  be  shown,  then  a  defendant  must  not  only 
have  a  deed,  but  a  title  good  in  itself,  before  he  can  claim  the 
protection  of  the  statute.  Such  manifestly  was  not  the  intention 
of  the  law.  It  will  scarcely  be  denied  that  a  party  holding  under 
a  sheriff's  deed  might  claim  the  protection  of  the  sixteenth  sec- 
tion of  the  statute,  and  it  is  not  perceived  that,  as  respects  this 
question,  there  is  any  difference  between  such  a  deed  and  that  of 
the  tax  collector.  The  validity  of  each  depends  equally  on  the 
power  of  the  officer.  (Robson  v.  Osborn,  13  Tex.  208.)  But  it 
can  not  be  said  that  the  deed  is  void  on  its  face  or  that  it  is  not  a 
deed  until  the  power  is  produced."  Wofford  v.  McKinna,  23 
Tex.  43;  Flmiagan  v.  Boggess,  46  Tex.  331, 


CHAPTER  XLIV. 

LIMITATION. 


Sec. 

902.  State  law. 

903.  State   and   county   taxes  not 

barred  since  1876. 

904.  City  of  Houston. 

905.  A   retroactive   law  of  limita- 

tion. 

906.  State   and   county   taxes   not 

barred.  , 

907.  Four  years'  limitation  of  ac- 

tions. 

908.  Limitation  against  action  for 

taxes — Applies  to  municipal 
corporation   and   purchaser. 

909.  Suit  to  recover  land  sold  for 

taxes. 

910.  Repeal  of  act  not    a    bar  to 

limitation. 


Sec. 

911.  Constitutional  law,   releasing 

debt  to  city. 

912.  Constitutionality    of    revoca- 

tion law  of  limitation. 

913.  Installments  on  bonds  barred 

in  four  years. 

914.  Reasonable   time   allowed   af- 

ter   pasisage    of    limitation 
act  in  which  to  file  suit. 

915.  Time    act    repeal    not    to    be 

computed. 

916.  Mere    lapse    of    time    no    de- 

fense. 

917.  Limitation      of      action      for 

money   paid   under  protest. 


§  902.     State  law. 

No  delinquent  taxpayer  shall  have  the  right  to  plead  in  any 
court  or  in  any  manner  rely  upon  any  statute  of  limitation  by 
way  of  defense  against  the  payment  of  any  taxes  due  from  him 
or  her  either  to  the  state  or  in  any  county,  city  or  state.  Sayles' 
R.  S.,  Art.  5212b. 

This  article  is  the  same  as  Section  16  of  the  Act  of  July  4,  1879, 
which  it  seems  was  omitted  from  the  Revised  Statutes  of  1895, 
which  went  into  effect  September  1,  1895.  There  was,  therefore, 
no  law  on  the  subject  from  September  1,  1895,  to  October  9  fol- 
lowing, the  date  of  the  passage  of  the  above  article.  See  Her- 
nandez V.  City  of  San  Antonio,  39  S.  W.  1022. 

§  903.     State  and  county  taxes  not  barred  since  1876. 

The  16th  section  of  the  Act  of  July  4,  1879,  General  Laws, 
Special  Session  1879,  provides  that  no  delinquent  taxpayer  shall 
have  the  right  to  plead  in  any  court  or  in  any  manner  rely  upon 
any  statute  of  limitation  by  way  of  defense  against  the  payment 


32 


498  Taxation  in  Texas. 

of  any  taxes  due  from  him  or  her  either  to  the  state,  or  any 
county,  city  or  town.  Taxes  due  for  the  years  1875  and  1876 
were  barred  at  the  time  the  Act  of  July  4,  1879,  was  passed,  but 
the  taxes  due  since  then  are  not.  Mellinger  v.  City  of  Houston, 
68  Tex.  Z7. 

§  904.     City  of  Houston. 

Since  1897,  the  charter  of  the  city  of  Houston  has  contained 
the  following  provision :  "Any  delinquent  taxpayer  shall  have 
the  right  to  plead  in  any  court  and  to  rely  upon  the  statutes  of 
limitation  of  four  years  in  any  suit  for  taxes  alleged  to  be  due 
the  city  of  Houston."  The  power  of  the  legislature  to  fix  a  period 
of  limitation  to  suits  by  a  city  for  the  collection  of  taxes -is  un- 
questioned, and  the  above  provision  of  the  charter  of  the  city  of 
Houston,  except  as  it  applied  to  suits  pending  at  the  time  it  was 
passed,  and  with  the  qualification  that  a  reasonable  time  would 
be  allowed  the  city  in  which  to  institute  suits  for  taxes  due  prior 
to  its  passage,  has  been  expressly  upheld.  Ollivier  v.  City  of 
Houston,  93  Tex.  201,  54  S.  W.  940,  943;  Link  v.  City  of  Hous- 
ton (Tex.  Civ.  App.),  59  S.  W.  566;  Link  v.  City  of  Houston 
(Tex.  Sup.),  60  S.  W.  664.  This  suit  was  brought  in  1902,  and, 
as  before  stated,  the  charter  provision  fixing  four  years  as  the 
limitation  to  suits  by  the  city  for  the  collection  of  delinquent  taxes 
was  passed  in  1897.  Under  these  facts  no  issue  of  whether  the 
city  had  had  reasonable  time  after  the  passage  of  the  charter  to 
bring  suit  for  taxes  due  at  the  time  the  charter  was  passed  was 
raised,  and  the  trial  court  should  have  held  plaintiff's  suit  barred 
for  all  taxes  due  four  years  prior  to  the  filing  of  the  petition. 

Neither  of  plaintiff's  pleas  in  avoidance  of  the  defendant's  plea 
of  limitation  alleged  facts  sufficient  to  suspend  the  running  of 
the  statute.  The  fact  that  John  S.  Stewart,  the  son  and  general 
agent  of  defendant,  was  attorney  for  the  city  from  1892  to  1900, 
and  as  such  attorney  failed  to  bring  suit  against  the  defendant 
for  the  recovery  of  taxes  due  by  her  to  the  city,  could  not  estop 
defendant  from  pleading  the  statute  of  limitation.  There  is  no 
allegation  of  fraud  or  collusion  between  the  defendant  and  the 
city  attorney.  The  city  was  charged  with  notice  of  the  fact  that 
the  taxes  were  due  and  suits  were  not  brought,  and  it  was  not 
prevented  by  any  act  of  the  defendant  or  her  said  agent  from 
bringing  suits  for  the  taxes  due  it  by  defendant.    The  plea  that 


Limitation.  499 

the  application  of  the  statute  of  limitation  would  affect  the  rights 
of  the  bondholders  who  are  not  parties  to  this  suit  is  equally  with- 
out merit.  As  before  stated,  the  city  in  all  matters  relating  to 
the  collection  and  preservation  of  the  fund  provided  for  the  pay- 
ment of  its  bonded  indebtedness  is  the  representative  of,  and 
trustee  for,  the  bondholders,  and  the  right  of  the  bondholders 
against  the  taxpayer  must  be  enforced  through  the  city.  When 
the  right  of  the  city  to  enforce  the  collection  of  the  tax  becomes 
barred,  that  right  is  necessarily  barred  against  the  bondholders. 
City  of  Houston  v.  Stezmrt,  90  S.  W.  S3,  40  Tex.  Civ.  App.  499. 

§  905.     A  retroactive  law  of  limitation  invalid. 

In  the  above  cited  case  of  Mellinger  v.  City  of  Houston,  68 
Tex.  37,  in  construing  .the  16th  section  of  the  Act  of  July  4,  1879 
(General  Laws,  Special  Session  1879,  p.  15),  which  denies  to  any 
taxpayer  the  right  to  plead  in  any  court,  or  in  any  manner  to 
rely  upon  any  statute  of  limitation  by  way  of  defense  against 
the  payment  of  any  taxes  due  from  him  or  her,  either  to  the 
state  or  to  any  county,  city  or  town,  it  was  held,  that:  "That 
clause  of  the  state  constitution  which  provides  that  no  retroactive 
law  shall  be  made,  was  intended  to  impose  a  broader  restriction 
on  legislative  power  than  could  exist  in  its  absence.  It  protects 
the  citizen  in  every  legal  right  existing  before  the  enactment 
of  any  law  designed  to  retroact  and  deprive  him  of  it ;  and  this 
whether  the  right  to  property  or  not.  A  right  in  a  legal  sense 
exists  when  in  consequence  of  given  facts  the  law  discloses  that 
one  person  is  entitled  to  enforce  against  another  a  claim,  or  to 
resist  the  enforcement  of  a  claim  urged  by  another.  When  by 
virtue  of  law  a  defendant  may  plead  and  show  an  existing  state 
of  facts  which  would  defeat  the  plaintiff's  right  to  recover,  then 
a  protecting  right  against  the  plaintiff's  demand  exists.  Such  a 
right  is  fixed  and  vested,  and  in  view  of  the  constitutional  pro- 
vision against  retroactive  law  can  not  be  divested  by  legislation. 
The  said  constitutional  provision  protects  a  plaintiff  in  the  en- 
forcement of  every  right,  recognized  and  fixed  by  law  against 
retroactive  legislation.  Prior  to  the  Act  of  July  4,  1879,  limita- 
tion would  run  against  the  right  of  a  municipal  government  to  en- 
force the  collection  of  taxes,  and  if  the  bar  was  complete  in  favor 
of  the  delinquent  taxpayer  before  the  adoption  of  that  act,  the 
right  to  rely  on  limitation  as  a  defense  was  an  existing  right. 


500  Taxation  in  Texas. 

which  could  not  be  defeated  by  any  retroactive  force  of  that  act. 
The  general  statutes  of  limitation  do  not  exempt  municipal 
corporations  from  their  operation,  and  the  courts  have  no  power 
to  do  so  upon  mere  grounds  of  expediency,  or  to  avoid  seeming 
hardship.  Mellinger  v.  City  of  Houston,  68  Tex.  41 ;  Galveston 
V.  Menard,  23  Tex.  408 ;  H.  &  T.  C.  Ry.  Co.  v.  Travis  Co.,  4  Tex. 
Law  Review  22. 

§  906.     State  and  county  taxes  not  barred. 

The  codifiers  of  the  Revised  Statutes  of  1895  omitted  the  Act 
of  July  4,  1879,  which  prohibited  the  statute  of  limitation  being 
plead  as  a  defense  to  the  payment  of  taxes  in  compiling  the  Re- 
vised Statutes,  but  at  the  first  called  session  of  the  24th  Leg- 
islature, Otcober  9,  1895,  the  identical  act  of  1879  was  re-enacted, 
which  took  eflfect  immediately  upon  its  passage  (Gen.  Laws,  1st 
Called  Session  24th  Legislature,  p.  6).  Then,  if  it  could  be 
said  that  limitation  would  run  against  the  state  when  the  statute 
is  silent  upon  the  subject  it  could  only  run  from  the  time  the  Re- 
vised Statutes  took  effect  to  the  time  the  law  was  re-enacted,  from 
September  1  to  October  9,  1895.  This  is  true,  also,  as  to  claim 
for  county  taxes,  or  cities  and  towns  incorporated  under  the  gen- 
eral law,  and  cities  which  are  not  effected  by  some  special  pro- 
vision of  their  charters.  The  period  during  which  the  statute  was 
silent  was  not  sufficient  to  create  a  bar,  and  there  was  therefore 
no  vested  right.  Hernandez  v.  City  of  San  Antonio,  39  S.  W. 
1022;  Ahney  v.  State,  A7  S.  W.  1043,  20  Tex.  Civ.  App.  101. 

We  believe  both  acts  of  1879  and  1895  had  a  prespective  effect, 
and  should  be  applied  to  all  taxes  then  due  and  thereafter  accru- 
ing for  which'  suits  might  afterwards  be  brought.  In  the  emer- 
gency clause  of  the  act  of  1895,  cited  as  a  reason  why  the  act 
should  take  effect  at  once,  it  is  stated  that  "whereas  there  is  now 
no  law  in  this  state  to  prevent  delinquent  taxpayers  from  set- 
ting up  the  statute  of  limitation  as  a  defense  against  the  payment 
of  any  taxes  due,"  etc.  Doubtless  this  declaration  referred  to  the 
short  period  above  mentioned,  when  the  statute  was  not  in  force, 
and  it  is  a  legislative  construction  of  the  law  as  to  that  period 
but  certainly  it  is  not  for  the  time  when  the  act  was  in  force. 
Ahney  v.  State,  A7  S.  W.  1044,  20  Tex.  Civ.  App.  101 ;  Mellinger 
V.  City  of  Houston,  68  Tex.  42,  3  S.  W.  249. 


Limitation.  ,  501 

§  907.     Four  years  limitation  of  actions. 

To  suspend  the  running  of  limitations  so  as  to  permit  an  attack 
on  a  judgment  for  taxes  after  the  expiration  of  four  years  there 
must  not  only  have  been  fraud  in  obtaining  the  judgment,  but 
it  must  have  been  coupled  with  such  concealment  of  the  fraud  as 
to  prevent  the  attacking  party  from  ascertaining  the  fraud  by 
the  use  of  reasonable  diligence  Dunn  v.  Taylor,  94  S.  W.  347, 
42  Tex.  Civ.  App.  241 ;  Mnnson  v.  Hallowell,  26  Tex.  475 ;  Ry. 
Co.  V.  Gay,  86  Tex.  571,  26  S.  W.  599. 

§  908.     Limitation  against  action  for  taxes — Applies  to  mu- 
nicipal corporation  and  purchaser. 

The  statute  of  limitations  will  run  against  a  municipal  corpora- 
tion, to  operate  as  a  bar  to  the  collection  of  city  taxes,  when  the 
defense  thereunder  is  not  expressly  taken  away  by  statute. 

The  taxes  act  of  July  4,  1879  (Sp.  Sess.  Tex.  1879,  Gen.  Laws, 
p.  15),  providing  "that  no  delinquent  taxpayer  shall  have  the 
right  to  plead  in  any  court,  or  in  any  manner  to  rely  upon,  any 
statute  of  limitation  by  way  of  defense  against  the  payment 
of  any  taxes  due  from  him  or  her,  either  to  the  state  or  any 
county,  city  or  town,"  applies  to  a  purchaser  of  property  incum- 
bered with  a  lien  for  taxes,  and  such  act  does  not  avail  to  take 
away  the  defense  of  the  statute  of  limitations  to  taxes  already 
barred  by  it  at  the  date  of  its  enactment,  but  does  so  in  those 
cases  where  such  bar  had  not  matured  at  that  date.  Mellinger  v. 
City  of  Houston,  3  S.  W.  249,  68  Tex.  37. 

§  909.     Suit  to  recover  land  sold  for  taxes. 

In  a  suit  to  recover  land  sold  for  taxes,  the  facts  pleaded  in 
regard  to  such  suit  being  for  the  purpose  of  showing  the  tax 
judgment  invalid,  the  statute  of  limitations  as  to  actions  for  the 
recovery  of  land  is  alone  applicable,  and  not  that  fixing  the  time 
in  which  a  suit  to  set  aside  a  judgment  or  a  bill  of  review  may 
be  brought.  Green  v.  Robertson,  70  S.  W.  345,  30  Tex.  Civ.  App. 
236. 

§910.     Repeal  of  act  not  a  bar  to  limitation. 

The  act  of  the  Legislature  approved  July  4,  1879,  contained  the 
following  provision :  "No  delinquent  taxjpayer  shall  have  the 
right  to  plead  in  any  court,  or  in  any  manner  rely  upon  any 
statute  of  limitation  by  way  of  defense  against  the  payment  of 


502  Taxation  in  Texas. 

any  tax  due  from  him  or  her,  either  to  the  state  or  any  county, 
city  or  town."  (Acts  1879,  Sp.  Sess.,  p.  15,  Chap.  17,  Sec.  16.) 
This  provision  continued  in  force  until  the  revision  of  the  stat- 
utes in  1895.  In  that  revision,  which  became  effective  Septem- 
ber 1,  1895,  this  clause  was  omitted.  By  an  act  of  the  special 
session  of  1895,  which  went  into  effect  October  9,  1895  (Laws 
1895,  p.  6,  Chap.  3,  Sec.  1),  this  clause  was  re-enacted.  Plain- 
tiffs in  error  contend  that  the  omission  in  the  Revised  Statutes 
of  1895  operated  to  repeal  this  clause,  and  that  from  that  time, 
as  to  taxes  then  due,  the  statutes  of  limitation  operated  against 
cities  and  towns,  as  if  there  had  never  been  any  law  to  prevent 
limitation  from  running;  and  they  further  insist  that,  the  bar  of 
the  statute  having  become  complete  by  the  repeal  of  the  statute,  its 
operation  could  not  be  prevented  by  the  re-enactment  of  this  pro- 
vision. The  same  question  has  been  passed  upon  by  the  Court 
of  Civil  Appeals  of  the  Fourth  District  in  the  case  of  Hernandes 
V.  City  of  San  Antonio,  39  S.  W.  1022,  and  by  this  court  in  Ah- 
ney  v..  State,  20  Tex.  Civ.  App.  101,  47  S.  W.  1043.  The  reason 
for  the  decision  is  not  stated  in  the  former  case ;  the  court  simply 
saying  that  the  article  saving  cities  from  the  statute  "was  in  effect 
until  September  1,  1895,  and  was  re-enacted  with  the  emergency 
clause  on  October  9,  1895,  and  the  taxes  of  1877  and  those  due 
for  following  years  not  being  barred  at  that  time,  the  statute  de- 
nying the  right  to  plead  limitation  was  applicable."  In  the  case 
of  Ahney  v.  State,  a  decision  of  the  question  was  perhaps  un- 
necessary, as  the  suit  was  for  taxes  due  the  state  and  county. 
In  discussing  it,  however.  Judge  Collard  said :  "If  it  could  be 
said  that  limitation  would  run  against  the  state,  when  the  statute 
is  silent  upon  the  subject,  it  could  only  run  from  the  time  that 
the  Revised  Statutes  took  effect  to  the  time  the  law  was  re-en- 
acted, from  September  1  to  October  9,  1895.  The  period  during 
which  the  statute  was  silent  was  not  sufficient  to  create  a  bar, 
and  there  was,  therefore,  no  vested  right." 

It  may  be  conceded  that  the  statutes  in  such  cases  only  affect 
the  remedy  and  that,  when  an  exception  operates  to  prevent  the 
running  of  the  statute  of  limitations,  such  exception  may  be  re- 
pealed, and  causes  of  action  which  would  have  been  barred,  but 
for  such  exception,  will  be  barred  after  its  repeal  as  if  it  had  never 
been  in  existence.  It  may  also  be  conceded  that,  when  the  bar  of 
the  statute  has  once  become  complete,  its  effect  can  not  be  de- 


Limitation.  "  503 

stroyed  by  subsequent  legislation.  The  first  rule,  however,  is  sub- 
ject to  an  important  qualification.  To  repeal  such  an  exception 
without  allowing  a  reasonable  time  to  sue  would  be  unconstitu- 
tional. It  is  customary,  therefore,  in  repealing  an  exception 
which  has  prevented  limitation  from  running,  to  allow  a  reason- 
able time  after  the  repeal  to  sue  upon  causes  of  action  which 
would  be  otherwise  barred.  But  when  the  legislature,  as  in  the 
present  instance,  has  failed  to  make  such  provision,  the  repeal 
is  not  held  invalid  because  of  such  omission ;  but  the  court,  while 
giving  effect  to  the  law,  will  nevertheless  construe  it  as  if  it  con- 
tained a  provision  allowing  parties  a  reasonable  time  to  assert 
rights  which  would  be  barred.  Boon  v.  Chamberlain,  82  Tex. 
480,  18  S.  W.  655 ;  Rncker  v.  Dailey,  66  Tex.  284,  1  S.  W.  316. 
What  is  a  reasonable  time  may  sometimes  become  a  question  of 
fact.  Link  v.  City  of  Houston  (Tex.  Sup.),  60  S.  W.  664.  The 
evidence  may  sometimes  be  such  that  the  court  can  determine  it 
as  a  question  of  law.  Williams  v.  Bradley,  67  S.  W.  170,  3  Tex. 
968.  Greenlaw  v.  City  of  Dallas,  75  S.  W.  812,  33  Tex.  Civ. 
App.  100. 

§911.     Constitutional  law,  releasing  debt  to  city. 

Section  55  of  Article  3  of  the  Constitution  of  the  State,  which 
prohibits  the  legislature  from  extinguishing  any  obligation  to  the 
state  or  a  municipality,  renders  void  a  law  empowering  defend- 
ants to  plead  limitation  in  pending  suits  by  a  city  for  taxes  due 
more  than  four  years  before  the  suit  began.  Ollimer  v.  City  of 
Houston,  93  Tex.  201,  41  Tex.  Civ.  App.  596. 

§  912.     Constitutionality  of  revocation  law  of  limitation. 

Houston  city  charter,  as  amended,  authorizing  any  delinquent 
taxpayer  to  plead  the  four  years'  limitation  to  any  suit  for  taxes 
due  such  city  whether  such  suit  has  heretofore  or  may  hereafter 
be  brought,  in  so  far  as  it  relates  to  actions  pending  at  the  time 
it  went  into  effect,  contravenes  Const.,  Art.  3,  Sec.  55,  prohibiting 
the  legislature  from  extinguishing  in  whole  or  in  part  the  in- 
debtedness, liabilities,  or  obligations  of  any  corporation  or  indi- 
vidual to  any  municipal  corporation  therein. 

Under  Const.,  Art.  3,  Sec.  55,  prohibiting  the  legislature  from 
extinguishing  the  whole  or  any  part  of  the  indebtedness  of  any 
corporation  or  individual  to  the  state  or  any  municipal  corpora- 
tion, a  city  is  entitled  to  raise  the  question  of  constitutionality  of 


504  Taxation  in  Texas. 

a  statute  of  limitation  barring  recovery  for  taxes  assessed  by  it. 
Ollivier  v.  City  of  Houston,  54  S.  W.  940,  93  Tex.  201,  22  Tex. 
Civ.  App.  55. 

§  913.     Installments  on  bonds  barred  in  four  years. 

Under  a  statute  authorizing  the  issuance  of  city  bonds  to  aid 
railroad  companies,  and  providing  for  the  levy  of  an  annual  tax 
to  pay  the  interest  and  two  per  cent  of  the  principal  annually,  in 
an  action  to  recover  the  amount  of  such  bonds,  plaintiff  was 
barred  by  limitations  from  recovering  the  two  per  cent  install- 
ments maturing  more  than  four  years  before  the  commencement 
of  the  action,  when  the  money  collected  by  tax  to  meet  such  in- 
stallments was  disbursed  by  the  assessor  and  collector  of  taxes, 
under  the  direction  of  the  city  council,  in  retiring  whole  bonds, 
instead  of  paying  installments  on  them  all.  Thornburgh  v.  City 
of  Tyler,  43  S.  W.  1054,  16  Tex.  439. 

§  914.     Reasonable  time  allowed  after  passage  of  limitation  act 
in  which  to  file  suit. 

Where  a  corporate  charter  provides  for  a  plea  of  four  years 
limitation  in  bar  of  suits  by  the  city  for  taxes,  the  city  has  a 
reasonable  time  after  the  act  takes  effect  in  which  to  bring  suits 
on  claims,  though  barred  under  the  limitation  prescribed  by  the 
charter  at  the  time  it  took  effect. 

Where  a  city  has  a  reasonable  time  in  which  to  bring  suits  for 
taxes  after  a  law  of  limitations  takes  effect,  it  is  a  question  of 
fact  for  the  court  whether  a  suit  was  brought  within  a  reasonable 
time.  Link  v.  City  of  Houston,  59  S.  W.  566,  94  Tex.  378 ;  Boon 
V.  Chamberlain,  82  Tex.  480,  18  S.  W.  655 ;  Greenlaw  v.  City  of 
Dallas,  75  S.  W.  812,  33  Tex.  Civ.  App.  100. 

§  915.     Time  act  repeal  not  to  be  computed. 

Laws  Sp.  Sess.  1879,  p.  15,  Sec.  16  (repealed  by  the  adoption 
of  the  Revised  Statutes  in  1895,  but  re-enacted  the  same  year), 
providing  that  no  delinquent  taxpayer  should  have  the  right  to 
plead  or  in  any  manner  rely  on  any  statute  of  limitations  by  way 
of  defense  to  a  claim  for  taxes,  suspended  the  running  of  lim- 
itations as  to  taxes  due  the  state  or  county  while  it  was  in  force, 
and  such  period  should  not  be  computed  in  determining  whether 
delinquent  taxes  are  barred.  State  v.  Gibson,  65  S.  W.  690,  27 
Tex.  Civ.  App.  355. 


Limitation.  505 

§  916.     Mere  lapse  of  time  no  defense. 

Where  the  statute  of  Hmitations  was  suspended  by  law  as  to 
taxes  due  a  state  or  county,  mere  lapse  of  time  could  not  be  set 
up  to  defeat  their  recovery.  State  v.  Gibson,  65  S.  W.  690,  27 
Tex.  Civ.  App.  355. 

§  917.     Limitation  of  action  for  money  paid  under  protest. 

Where  a  city  purchased  land,  but,  before  final  payment,  re- 
quired the  vendor  to  pay  certain  taxes,  to  enjoin  the  collection  of 
which  the  plaintiff  had  an  action  pending,  and  the  plaintiff  paid 
such  taxes  under  an  agreement  by  which  he  received  receipts 
merely  stating  that  the  money  was  paid  under  protest,  and  the 
injunction  proceedings  were  finally  decided  in  plaintiff's  favor, 
but  not  until  after  the  statutory  limitation  of  his  action  for  the 
recovery  of  the  money  paid  under  protest  had  expired,  his  right 
of  action  therefor  was  barred.  City  of  Dallas  v.  Kruegel,  64  S. 
W.  922,  95  Tex.  43.       - 


CHAPTER  XLV. 

TAX  UPON  GROSS  RECEIPTS. 

Sec.  Sec. 

918.  Act  providing  for  levying  and       921.  Not  applicable  where  road  is 

collecting    taxes    upon    the  incorporated   under   Act   of 

gross  receipts  of  certain  in-  Congress, 

dividuals,   firms   and  corpo-  922.  Taxes  on  corporate  privileges, 

rations.  923.  Oil  companies. 

919.  Gross  receipts  tax  bill.  924.  Interstate  commerce  does  not 

920.  Injunction  will  not  lie  to  re  apply. 

strain  oflacers. 

§  918.  Act  providing  for  levying  and  collecting  taxes  upon 
the  gross  receipts  of  certain  individuals,  firms  and 
corporations. 

Section  1.  Each  and  every  express  company  shall,  on  or  be- 
fore the  first  day  of  March,  1906,  and  annually  thereafter,  through 
its  superintendent  or  other  chief  ofiicer,  or  authorized  agent,  file 
with  the  comptroller  a  report,  under  oath,  showing  the  amount 
of  gross  receipts  from  charges  and  freights  within  this  state  paid 
to  or  uncollected  by  such  company  on  account  of  money,  goods, 
merchandise  or  other  character  of  freight  carried  within  this  state 
during  the  twelve  months  next  preceding  January  the  first  of 
each  year.  Said  express  companies,  at  the  time  of  filing  the  re- 
quired report,  shall  pay  to  the  treasurer  of  the  state  an  annual 
tax  equal  to  two  and  one-half  per  cent  on  their  gross  receipts,  as 
shown  by  said  report.  The  receipt  of  the  treasurer  of  the  state 
shall  be  evidence  of  the  payment  of  such  taxes.  Should  any  per- 
son, association  of  persons,  the  officers  or  agents  of  any  such  per- 
son, association  of  persons,  or  corporations  herein  named,  fail  to 
make  the  report  provided  for  in  this  section  for  more  than  sixty 
days  after  the  termination  of  any  year,  then  he  shall  be  deemed 
guilty  of  a  misdemeanor,  and  upon  conviction  shall  be  fined  in 
any  sum  not  less  than  fifty  dollars,  nor  more  than  one  hundred 
dollars.  Each  day  after  said  sixty  days  have  expired  shall  be 
deemed  a  separate  offense ;  and  in  addition  thereto  in  the  event 
of  the  failure  of  the  officers  or  agents  of  any  such  company  or 
corporation  to  make  such  report,  and  pay  said  tax,  for  sixty  days 


Tax  Upon  Gross  Receipts.  507 

after  the  termination  of  any  year,  each  and  every  such  company 
or  corporation  so  failing  shall  forfeit  and  pay  to  the  state  of 
Texas  twenty-five  dollars  for  each  day  said  report  and  payment 
are  delayed,  which  forfeiture  shall  be  sued  for  by  the  attorney 
general,  in  the  name  of  the  state.  For  the  purpose  of  suits  and 
prosecutions  provided  for  herein,  venue  and  jurisdiction  are  here- 
by conferred  upon  the  courts  of  Travis  County,  and  service  may 
be  had  upon  any  officer  or  agent  of  such  company  or  corporation 
within  this  state,  and  such  service  shall  in  all  respects  be  held 
legal  and  valid.  The  tax  herein  provided  for  shall  be  in  lieu  of 
all  other  taxes  now  levied  upon  express  companies,  and  not  in 
addition  thereto. 

Sec.  2.  Every  sleeping  car  company,  palace  car  company,  or 
dining  car  company,  doing  business  in  this  state,  and  every  cor- 
poration, person  or  association  of  persons  leasing  or  renting,  own- 
ing, controlling  or  managing  any  palace  cars  or  dining  or  sleep- 
ing cars  within  this  state,  for  the  use  of  the  public,  and  for 
which  any  fare  is  charged,  shall  pay  an  annual  tax  equal  to  four 
per  cent  of  their  gross  receipts  earned  from  any  and  all  sources 
whatever  within  this  state,  except  from  receipts  derived  from 
buffet  service.  Said  taxes  herein  provided  for  shall  be  paid  to  the 
state  treasurer  quarterly  for  the  use  of  the  state.  Every  sucli 
company,  association,  person  or  corporation,  so  owning,  con- 
trolling or  managing  any  such  dining  car,  palace  car,  or  sleeping 
car,  shall,  on  the  first  day  of  April  of  each  year,  and  quarterly 
thereafter,  report  to  the  comptroller,  under  oath  of  the  president, 
treasurer,  superintendent  or  some  other  officer  of  said  corpora- 
tion, or  some  agent  thereof,  duly  authorized,  the  gross  amount 
of  receipts  earned  from  any  and  all  sources  whatever  within  this 
state,  except  from  receipts  derived  from  buffet  service,  during 
the  preceding  quarter.  Should  any  person,  association  of  persons, 
the  officers  or  agents  of  any  such  persons,  association  of  persons, 
or  corporations  herein  named,  fail  to  make  the  report  provided 
for  in  this  chapter,  for  more  than  thirty  days  after  the  termina- 
tion of  any  quarter  of  the  year,  then  he  shall  be  deemed  guilty  of 
a  misdemeanor,  and  upon  conviction  shall  be  fined  in  any  sum  not 
less  than  fifty  dollars  nor  more  than  one  hundred  dollars.  Each 
day  after  said  thirty  days  have  expired  shall  be  deemed  a  separate 
offense ;  and  in  addition  thereto,  in  the  event  of  the  failure  of  the 
officers  or  agents  of  any  such  company  or  corporation  to  make 


508  Taxation  in  Texas. 

such  report,  and  pay  said  tax,  for  thirty  days  after  the  termina- 
tion of  any  quarter  of  the  year,  each  and  every  such  company  or 
corporation  so  faihng  shall  forfeit  and  pay  to  the  state  of  Texas 
twenty-five  dollars  for  each  day  said  report  and  payment  are  de- 
layed, which  forfeiture  shall  be  sued  for  by  the  attorney  general 
in  the  name  of  the  state.  For  the  purpose  of  suits  and  prosecu- 
tions provided  for  herein,  venue  and  jurisdiction  are  hereby  con- 
ferred upon  the  courts  of  Travis  County,  and  service  may  be  had 
upon  any  officer  or  agent  of  such  company  or  corporation  within 
this  state,  and  such  service  shall  in  all  respects  be  held  legal  and 
valid.  The  tax  herein  provided  for  shall  be  in  lieu  of  all  other 
taxes  now  levied  upon  sleeping  car,  palace  car,  or  dining  car 
companies,  except  the  tax  of  twenty-five  cents  on  the  one  hundred 
dollars  of  the  capital  stock  of  said  companies  employed  in  this 
state,  as  provided  by  the  Acts  of  the  Twenty-third  Legislature, 
Chapter  102. 

Sec.  3.  Each  and  every  person,  association  of  persons,  firm, 
company  or  corporation  owning,  operating,  managing  or  control- 
ling any  telegraphic  line  or  lines  in  this  state,  for  the  transmis- 
sion of  telegraphic  messages,  and  charging  for  the  transmission 
of  said  messages,  shall  pay  an  annual  tax  of  three  per  cent  on 
their  gross  receipts  from  all  sources  within  this  state.  Said  taxes 
herein  levied  shall  be  paid  to  the  state  treasurer  quarterly.  Ev- 
ery such  person,  association  of  persons,  firm,  company  or  corpora- 
tion, so  owning,  controlling  or  managing  any  telegraphic  line  or 
lines  in  this  state  shall,  on  or  before  the  first  day  of  April  of 
each  year,  and  quarterly  thereafter,  report  to  the  comptroller  of 
public  accounts,  under  the  oath  of  the  president,  treasurer  or  su- 
perintendent of  said  company,  association  or  corporation,  or  some 
officer  or  agent  thereof,  duly  authorized,  the  amount  received  by 
them  in  the  payment  of  telegraphic  charges,  including  the  amount 
received  on  full  rate  messages  and  half  rate  messages  and  from 
the  lease  of  any  wires,  during  the  preceding  quarter.  Should  any 
person,  association  of  persons,  firm,  company  or  corporation,  or 
the  officers  or  agents  of  any  such  person,  association  of  persons, 
firm,  company  or  corporation  herein  named,  fail  to  make  the  re- 
port provided  for  in  this  article,  for  thirty  days  after  the  termina- 
tion of  any  quarter  of  the  year,  then  he  shall  be  deemed  guilty 
of  a  misdemeanor,  and  upon  conviction  shall  be  fined  in  any  sum 
not  less  than  fifty  dollars,  nor  more  than  one  hundred  dollars. 


Tax  Upon  Gross  Receipts.  509 

Each  day  after  said  thirty  days  have  expired  shall  be  deemed  a 
separate  offense.  In  addition  thereto,  in  the  event  of  the  failure 
of  the  officer  or  agent  of  any  such  person,  company  or  corpora- 
tion, to  make  the  report  herein  required,  and  pay  said  taxes  for 
thirty  days  after  the  termination  of  any  quarter  of  the  year,  each 
and  every  such  person,  company,  or  corporation  shall  forfeit  and 
pay  to  the  state  of  Texas  twenty-five  dollars  for  each  day  said 
report  and  payment  are  delayed,  which  forfeiture  and  taxes  shall 
be  sued  for  by  the  attorney  general,  in  the  name  of  the  state.  For 
the  purpose  of  suits  and  prosecutions  provided  for  in  this  article, 
venue  and  jurisdiction  are  hereby  conferred  upon  the  courts  of 
Travis  County,  and  service  may  be  had  upon  any  officer  or  agent 
of  such  person,  firm,  company  or  corporation  in  this  state,  and 
such  service  shall  in  all  respects  be  held  legal  and  valid.  The 
tax  provided  for  in  this  article  shall  6e  in  addition  to  all  other 
taxes  levied,  except  the  present  message  tax  of  one  cent  on  each 
full  rate  message,  and  one-half  of  one  cent  on  each  half  rate  mes- 
sage, which  is  levied  by  Article  5049,  Revised  Statutes  of  1895, 
and  which  is  hereby  repealed. 

Sec.  4.  Each  and  every  person,  association  of  persons,  firm, 
company  or  corporation  owning,  operating,  managing  or  con- 
trolling any  telephone  line  or  lines  and  telephones  within  this  state, 
and  charging  for  the  use  of  the  same,  shall  pay  a  tax  of  one  and 
half  per  cent  upon  their  gross  receipts  within  this  state ;  pro- 
vided, that  no  gross  receipt  tax  shall  be  levied  upon  any  person, 
firm,  company  or  corporation  owning,  managing  or  controlling 
any  telephone  line  not  operated  for  toll,  revenue  or  hire.  Said 
taxes  herein  levied  shall  be  paid  to  the  state  treasurer  quarterly. 
Every  such  person,  association  of  persons,  firm,  company  or  cor- 
poration so  managing,  owning,  or  controlling  any  telephone  line 
or  lines,  and  telephones,  in  this  state,  shall  on  the  first  day  of 
April  of  each  year,  and  quarterly  thereafter,  report  to  the  comp- 
troller of  public  accounts,  under  the  oath  of  the  president,  treas- 
urer or  superintendent  of  said  company,  association  or  corpora- 
tion, or  some  officer  or  agent  thereof  duly  authorized,  the  amount 
received  by  them  or  it  in  the  payment  of  charges  for  the  use  of  its 
line  or  lines,  telephone  and  telephones,  during  the  preceding  quar- 
ter. Should  any  person,  association  of  persons,  firm,  company  or 
corporation,  or  the  officers  or  agents  of  such  person,  association  of 
piersons,  firm,  company  or  corporation  herein  named,  fail  to  make 


510  Taxation  in  Texas. 

the  report  provided  for  in  this  article,  for  thirty  days  after  the 
termination  of  any  quarter  of  the  year,  then  he  shall  be  deemed 
guilty  of  a  misdemeanor,  and  upon  conviction  shall  be  fined  in 
any  sum  not  less  than  fifty  dollars,  nor  more  than  one  hundred 
dollars.  Each  day  after  said  thirty  days  have  expired  shall  be 
deemed  a  separate  ofifense.  In  addition  thereto,  in  the  event  of 
the  failure  of  the  officer  or  agent  of  any  such  person,  firm,  com- 
pany or  corporation  to  make  the  report  herein  required,  and  pay 
said  taxes  for  thirty  days  after  the  termination  of  any  quarter 
of  the  year,  each  and  every  such  person,  company  or  corporation 
shall  forfeit  and  pay  to  the  state  of  Texas  twenty-five  dollars 
for  each  day  said  report  and  payment  are  delayed,  w^hich  for- 
feiture and  taxes  shall  be  sued  for  by  the  attorney  general,  in  the 
name  of  the  state.  For  the  purpose  of  suits  and  prosecutions  pro- 
vided for  in  this  article,  venue  and  jurisdiction  are  hereby  con- 
ferred upon  the  courts  of  Travis  County,  and  service  may  be 
had  upon  any  officer  or  agent  of  such  person,  firm,  company  or 
corporation  in  this  state,  and  such  service  shall  in  all  respects 
be  held  legal  and  valid ;  provided,  that  where  telephone  companies 
have  previously  paid  the  state  tax  for  1905,  of  twenty-five  cents 
on  each  telephone  in  use,  levied  under  Article  5243f,  of  the  Re- 
vised Statutes  of  1895,  the  amount  so  fixed  in  advance  of  the  date 
when  this  act  takes  eflfect,  shall  be  deducted  from  the  amount 
shown  to  be  due  from  the  tax  of  one  and  one-half  per  cent  on 
gross  receipts  imposed  by  this  act.  The  tax  provided  for  in  this 
article  shall  be  in  addition  to  all  other  taxes  levied  by  law,  except 
that  levied  by  Articles  5049  and  5243f,  of  the  Revised  Civil  Stat- 
utes of  1895,  which  are  hereby  repealed. 

Sec.  5.  Every  surety  and  guaranty  company,  at  the  time  of 
filing  its  annual  statement,  shall  report  to  the  commissioner  of 
insurance  its  gross  premium  receipts  in  the  state  during  the  pre- 
ceding year,  and  shall  pay  an  annual  tax  of  two  per  cent  on  its 
gross  receipts  from  fees  or  charges  collected.  Upon  receipt  by 
him  of  sworn  statements  showing  the  gross  premium  receipts  by 
such  companies,  the  commissioner  shall  certify  to  the  state  treas- 
urer the  amount  of  tax  due  by  each  company,  which  tax  shall 
be  paid  to  the  state  treasurer  on  or  before  the  first  day  of  March, 
following,  whose  receipt  shall  be  evidence  of  the  payment  of  such 
taxes.    No  such  company  shall  receive  a  permit  to  continue  to  do 


Tax  Upon  Gross  Receipts.  511 

business  in  this  state  until  such  taxes  are  paid.  The  tax  pro- 
vided for  in  this  article  shall  be  in  addition  to  all  other  taxes  lev- 
ied by  law. 

Sec.  6.  Each  and  every  person,  firm,  corporation  or  association 
of  persons  owning,  operating  or  controlling  any  collecting  agency 
or  commercial  agency  in  this  state,  and  charging  for  collections 
made  or  business  done,  shall  pay  to  the  state  treasurer  an  annual 
tax  of  one-half  of  one  per  cent  upon  their  gross  receipts  for  the 
use  and  benefit  of  the  state.  This  tax  shall  be  in  addition  to  all 
other  taxes  levied  and  said  taxes  shall  be  paid  to  the  state  treas- 
urer quarterly.  Every  such  person,  firm,  corporation  or  associa- 
tion of  persons  so  owning,  controlling  or  managing  any  commer- 
cial agency  or  collecting  agency  shall,  on  or  before  the  first  day 
of  April,  and  quarterly  thereafter,  report  to  the  comptroller  of 
public  accounts  under  oath  of  the  president,  treasurer  or  super- 
intendent of  said  company,  association  of  persons,  person  or  cor- 
poration, or  some  other  officer  or  agent  thereof  duly  authorized, 
the  amount  received  by  them  or  it  in  the  payment  of  charges  for 
collections  made  and  business  done  for  the  quarter  next  preced- 
ing. Should  any  person,  association  of  persons,  firm,  company 
or  corporation,  or  the  officers  or  agent  thereof,  herein  named,  fail 
to  make  the  report  provided  for  in  this  article,  for  thirty  days 
after  the  termination  of  any  quarter  of  the  year,  then  he  shall  be 
deemed  guilty  of  a  misdemeanor,  and  upon  conviction  shall  be 
fined  in  any  sum  not  less  than  fifty  dollars  nor  more  than  one 
hundred  dollars.  Each  day  after  the  said  thirty  days  have  ex- 
pired shall  be  deemed  a  separate  offense.  In  addition  thereto,  in 
the  event  of  the  failure  of  the  officer  or  agent  of  any  such  per- 
son, company  or  corporation  to  make  the  report  herein  required 
and  pay  said  taxes  for  thirty  days  after  the  termination  of  any 
quarter  of  the  year,  each  and  every  such  person,  company  or  cor- 
poration shall  forfeit  and  pay  to  the  state  twenty-five  dollars  for 
each  day  said  report  and  payment  are  delayed,  which  forfeiture 
and  taxes  shall  be  sued  for  by  the  attorney  general,  in  the  name 
of  the  state.  For  the  purpose  of  suits  provided  for  in  this  article, 
venue  and  jurisdiction  are  hereby  expressly  conferred  upon  the 
courts  of  Travis  County,  and  service  may  be  had  upon  any  officer 
or  agent  of  any  such  person,  company  or  corporation  within  this 
state,  and  such  service  shall  in  all  respects  be  held  legal  and  valid. 


512  Taxation  in  Texas. 

Sec.  7.  Each  and  every  person,  firm,  corporation  or  associa- 
tion of  persons  owning,  operating  or  controlling  any  gas,  electric 
light  or  electric  power  plant  or  water  works  plant  in  this  state, 
and  charging  for  gas,  electric  light,  electric  power  or  water,  shall 
pay  to  the  state  treasurer  an  annual  tax  of  one-fourth  of  one 
per  cent  upon  their  gross  receipts  for  the  use  and  benefit  of  the 
state.  This  tax  shall  be  in  addition  to  all  other  taxes  levied, 
and  said  taxes  shall  be  paid  to  the  state  treasurer  quarterly.  Ev- 
ery such  person,  firm,  corporation  or  association  of  persons  so 
owning,  controlling  or  managing  any  gas  or  electric  light 
plant  or  electric  power  plant,  or  water  works  plant  shall  on  or 
before  the  first  day  of  April,  and  quarterly  thereafter,  report  to 
to  the  comptroller  of  public  accounts,  under  oath  of  the  president, 
treasurer  or  superintendent  of  said  company,  association  of  per- 
sons, person  or  corporation,  or  some  other  officer  or  agent  thereof, 
duly  authorized,  the  amount  received  by  them  or  it  in  the  payment 
of  charges  for  gas  or  electric  lights,  or  electric  power  or  water, 
for  the  quarter  next  preceding.  Should  any  person,  association 
of  persons,  firm,  company  or  corporation,  or  the  officers  or  agents 
thereof  herein  named  fail  to  make  the  report  provided  for  in  this 
article,  for  thirty  days  after  the  termination  of  any  quarter  of  the 
year,  then  he  shall  be  deemed  guilty  "of  a  misdemeanor,  and  upon 
conviction  shall  be  fined  in  any  sum  not  less  than  fifty  dollars, 
nor  more  than  one  hundred  dollars.  Each  day  after  said  thirty 
days  have  expired  shall  be  deemed  a  separate  offense.  In  addi- 
tion thereto,  in  the  event  of  the  failure  of  the  officer  or  agent  of 
any  such  person,  company  or  corporation  to  make  the  report  here- 
in required'  and  pay  said  taxes  within  thirty  days  after  the  termi- 
nation of  any  quarter  of  the  year,  each  and  every  such  person, 
company  or  corporation  shall  forfeit  and  pay  to  the  state  twenty- 
five  dollars  for  each  day  said  report  and  payment  are  delayed, 
which  forfeiture  and  taxes  shall  be  sued  for  by  the  attoi-ney  gen- 
eral, in  the  name  of  the  state.  For  the  purpose  of  suits  provided 
for  in  this  article,  venue  and  jurisdiction  are  hereby  expressly 
conferred  upon  the  courts  of  Travis  County,  and  service  may  be 
had  upon  any  officer  or  agent  of  any  such  person,  company  or 
corporation  within  this  state,  and  such  service  shall  in  all  respects 
be  held  legal  and  valid. 

Sec.  8.  Each  and  every  person,  firm,  association  of  persons, 
corporation,  domestic  and  foreign,  who  shall  directly  or  indirectly, 


Tax  Upon  Gross  Receipts.  513 

or  as  agent  for  another,  or  through  any  agent  or  agents,  carry 
on,  manage,  superintend,  or  transact  any  business  commonly 
known  as  exchanges,  or  dealing  in  futures,  in  any  agricultural 
products,  articles  of  commerce,  corporation  stocks,  or  any  other 
article  or  commodity,  or  where  orders  are  taken  and  booked  to 
be  accepted  and  consummated  by  another  where  there  exists  the 
bona  fide  intention  to  deliver,  shall,  on  or  before  the  first  day  of 
April  of  each  year  and  quarterly  thereafter,  file  with  the  comp- 
troller of  public  accounts  a  report  in  writing  under  oath  showing 
the  amount  of  gross  receipts  from  the  management  of  any  such 
business  from  all  sources  for  the  preceding  three  months,  and 
shall  pay  a  tax  of  one  and  one-quarter  (1>4)  per  cent  on  their 
gross  receipts  from  all  sources.  Said  tax  herein  levied  shall  be 
paid  to  the  state  treasurer  quarterly,  that  is  to  say,  on  the  first 
days  of  April,  July,  October  and  January  of  each  year,  provided 
that  this  article  shall  not  apply  to  merchandise  brokers  and  com- 
mission merchants.  If  any  such  person,  or  the  manager  or  man- 
agers of  any  such  business  for  any  firm,  association  of  persons, 
or  corporation,  shall  fail  to  make  the  report,  and  pay  the  tax  as 
above  provided  for,  thirty  days  after  the  termination  of  any  quar- 
ter of  the  year,  each  and  every  such  person,  firm,  association  of 
persons  or'  corporation,  shall  when  so  failing,  forfeit  and  pay  to 
the  state  twenty-five  ($25)  dollars  for  each  day  said  report  and 
payment  are  delayed,  which  forfeiture  and  tax  shall  be  sued  for 
by  the  attorney  general  in  the  name  of  the  state,  and  venue  is 
hereby  given  in  any  court  of  competent  jurisdiction  in  Travis 
County.  The  tax  here  provided  shall  be  in  addition  to  all  other 
taxes  levied  by  law. 

Sec.  9.  Each  and  every  person,  association  of  persons  or  cor- 
poration created  by  the  laws  of  this  or  any  other  state  or  nation, 
which  shall  engage  in  their  own  name,  or  in  the  name  of  others, 
or  in  the  name  of  their  representatives  or  agents,  in  this  state, 
in  the  wholesale  business  of  coal  oil,  naphtha,  benzine  or  any  other 
mineral  oils  refined  from  petroleum,  and  any  and  all  mineral  oils, 
shall  pay  an  annual  tax  of  two  per  cent  upon  their  gross  receipts 
from  any  and  all  sales  in  this  state  of  any  of  said  articles  in  Section 
9  of  this  act  hereinabove  mentioned,  and  an  annual  tax  of  two 
per  cent  of  the  cash  market  value  of  any  and  all  of  said  articles 
that  may  be  received  or  possessed  or  handled  or  disposed  of  in 
any  manner  other  than  by  sale  in  this  state;  and  it  is  hereby 
33 


514  Taxation  in  Texas. 

expressly  provided  that  delivery  to  or  possession  by  any  person, 
association  of  persons  or  corporation  in  this  state  of  any  of  the 
articles  hereinabove  mentioned  in  Section  9  of  this  act,  from  what- 
ever source  the  same  may  have  been  received,  shall  for  the  pur- 
pose of  this  act  be  held  and  considered  such  a  sale  and  such  own- 
ership and  possession  of  such  articles  and  property  (where  no  sale 
is  made)  as  will  and  shall  subject  the  same  to  the  tax  herein  pro- 
vided for.    Said  tax  herein  provided  for  shall  be  paid  to  the  state 
treasurer  quarterly,  and  every  such  person,  agent,  association  of 
persons,  or  corporation  so  owning,  controlling  or  managing  such 
business  shall,  on  or  before  the  first  day  of  April,  and  quarterly 
thereafter,  report  to  the  comptroller  under  oath  of  the  president, 
treasurer,  superintendent  or  some  other  officer  of  said  corporation 
or  association,  or  some  duly  authorized  agent  thereof,  the  amount 
received  by  them  from  such  business  in  this  state.     Should  any 
person,  association  of  persons  or  corporation,  or  the  officers  or 
agents  of  any  such  corporation,  person  or  association  of  persons 
herein  named,  fail  to  make  the  report  herein  provided  for,  and  pay 
said  taxes  for  thirty  days  after  the  termination  of  any  quarter  of 
the  year,  then  he  shall  be  deemed  guilty  of  a  misdemeanor,  and 
upon  conviction  shall  be  fined  in  any  sum  not  less  than  fifty  nor 
more  than  one  hundred  dollars.     Each  and  every  day  after  said 
thirty  days  have  expired  shall  be  deemed  a  separate  offense.     In 
addition  thereto,  in  the  event  of  the  failure  of  the  officers  or 
agents  of  any  such  company  or  corporation  to  make  the  reports 
and  pay  said  taxes,  for  thirty  days  after  the  termination  of  any 
quarter  of  the  year,  each  and  every  such  company  or  corpora- 
tion, or  their  officers  or  agents  so  failing,  shall  forfeit  and  pay 
to  the  state  the  sum  of  twenty-five  dollars  for  each  day  said  re- 
port and  payment  are  delayed,  which  forfeiture  and  taxes  shall 
be  sued  for  by  the  attorney  general  in  the  name  of  the  state.    For 
the  purpose  of  suits  and  prosecutions  provided  for  in  this  article, 
venue  and  jurisdiction  are  hereby  expressly  conferred  upon  the 
courts  of  Travis  County,  and  service  may  be  had  upon  any  officer 
or  agent  of  such  company  or  corporation  in  the  state,  and  such 
service  shall  in  all  respects  be  held  legal  and  valid.     The  tax 
herein  levied  shall  be  in  addition  to  all  other  taxes  levied  by  law. 
Sec.  10.    Every  person,  firm,  joint  stock  association,  company, 
corporation,  or  association  of  persons,  whether  incorporated  un- 


Tax  Upon  Gross  Receipts.  515 

der  the  laws  of  this  state  or  of  any  other  state  or  nation,  or 
whether  incorporated  at  all  or  not,  engaged  in  publishing,  printing 
and  selling  text  books  used  in  the  schools  of  this  state,  or  law 
books  of  any  character,  or  any  such  person,  firm,  joint  stock  asso- 
ciation, company,  corporation  or  association  of  persons  owning, 
controlling  or  managing  any  such  business  as  text  book  or  law 
book  publishers  within  this  state  or  out  of  it,  and  having  state 
agencies  in  this  state  for  the  purpose  of  selling  any  book  or  books 
to  be  used  in  any  of  the  schools  of  this  state,  shall  pay  a  tax  of  one 
per  cent  on  their  gross  receipts  from  such  business  in  this  state. 
This  tax  shall  be  paid  to  the  state  treasurer  quarterly.  Every 
such  person,  firm,  joint  stock  association,  company,  corporation 
or  association  of  persons  so  owning,  controlling  or  managing  any 
such  business  as  text  books  or  law  book  publishers,  or  having 
state  agencies  in  this  state,  shall  on  or  before  the  first  day  of 
April,  and  quarterly  thereafter,  of  each  year,  report  to  the  comp- 
troller of  public  accounts,  under  the  oath  of  the  person  owning  or 
operating  said  agency,  or  of  the  president,  treasurer,  superin- 
tendent or  some  other  responsible  officer  of  such  firm,  company, 
joint'  stock  association,  or  corporation,  the  amount  received  by 
them  from  such  business  for  and  during  the  preceding  quarter 
of  the  year.  Should  any  person,  association  of  persons,  firm,  com- 
pany or  corporation,  or  the  officer  or  agent  thereof  herein  named, 
fail  to  make  the  report  provided  for  in  this  article,  for  thirty  days 
after  the  termination  of  any  quarter  of  the  year,  then  he  shall 
be  deemed  guilty  of  a  misdemeanor,  and  upon  conviction  shall 
be  fined  in  any  sum  not  less  than  fifty  dollars  nor  more  than  one 
hundred  dollars,  and  each  day  after  said  thirty  days  have  expired 
shall  be  deemed  a  separate  ofifense.  And  in  addition  thereto,  in 
the  event  of  the  failure  of  the  officer  or  agent  of  any  such  person 
or  corporation  to  make  the  report  herein  required,  and  pay  the 
said  taxes,  for  thirty  days  after  the  termination  of  any  quarter  of 
the  year,  each  and  every  such  person,  company  or  corporation  so 
failing  shall  forfeit  and  pay  to  the  state  twenty-five  dollars  for 
each  day  said  report  and  payment  are  delayed,  which  forfeiture 
and  taxes  shall  be  sued  for  by  the  attorney  general  in  the  name 
of  the  state.  For  the  purpose  of  suits  and  prosecutions  provided 
for  in  this  article,  venue  and  jurisdiction  are  hereby  expressly 
conferred  upon  the  courts  of  Travis  County,  and  service  may 


516  Taxation  in  Texas: 

be  had  upon  any  officer  or  agent  of  such  person,  company  or 
corporation  within  this  state,  and  such  service  shall  in  all  respects 
be  held  legal  and  valid. 

Sec.  11.  Every  person,  firm,  joint  stock  association  or  cor- 
poration owning  stock  cars,  refrigerator  and  fruit  cars  of  any 
kind,  tank  cars  of  any  kind,  coal  cars  of  any  kind,  furniture  cars, 
or  common  box  and  flat  cars,  and  leasing,  renting,  operating,  hir- 
ing or  charging  mileage  for  the  use  of  such  cars,  shall  on  or  be- 
fore the  first  day  of  April,  and  quarterly  thereafter,  through  its 
superintendent  or  other  chief  officer,  or  authorized  agent,  file 
with  the  comptroller  of  public  accounts  a  report,  under  oath, 
showing  the  amount  of  gross  receipts  from  such  rentals  or  mile- 
age, or  other  sources  of  revenue,  for  the  preceding  three  months, 
and  shall  pay  a  tax  of  two  per  cent  on  their  gross  receipts  from 
all  rentals  or  mileage  or  other  sources  of  revenue  received  from 
any  railway  companies  or  other  persons  or  from  all  other  sources 
within  this  state ;  provided,  this  shall  not  apply  to  the  mileage  and 
per  diem  paid  by  one  railway  company  to  another  railway  com- 
pany within  this  state  for  the  use  of  such  cars.  Said  tax  herein 
levied  shall  be  paid  to  the  state  treasurer  quarterly.  If  any  per- 
son, firm,  joint  stock  association  or  corporation  shall  fail  to  make 
the  report  and  pay  the  tax  as  above  provided,  for  thirty  days  after 
the  termination  of  any  quarter  of  the  year,  each  and  every  such 
person,  firm,  joint  stock  association  or  corporation  so  failing  shall 
forfeit  and  pay  to  the  state  twenty-five  dollars  for  each  day  said 
report  and  payment  are  delayed,  which  forfeiture  and  tax  shall 
be  sued  for  by  the  attorney  general,  in  the  name  of  the  state.  And 
it  is  hereby  provided  that  the  cars  or  property  of  any  such  person, 
firm,  joint  stock  association  or  corporation  shall  be  subject  to 
seizure  arid  sale  whenever  found  in  this  state,  to  pay  the  taxes, 
penalties  and  cost  that  may  accrue  under  this  article;  provided, 
that  upon  the  request  of  the  comptroller  each  railroad  company 
in  the  state  of  Texas  shall  forthwith  and  within  not  more  than 
thirty  (30)  days  aft^r  such  request  shall  have  been  made,  report 
to  said  comptroller  under  oath  the  amounts  paid  by  it  for  the  use 
of  the  cars  of  the  kind  mentioned  in  this  section  within  such 
period  as  the  comptroller  shall  have  fixed  and  to  what  companies, 
associations  or  individuals  the  same  was  paid  and  the  amount  paid 
to  each  and  the  dates  and  particulars  of  such  payments,  and  if 


Tax  Upon  Gross  Receipts.  517 

any  railroad  shall  fail  to  make  any  report  as  herein  provided  it 
shall  forfeit  and  pay  to  the  state  twenty-five  (25)  dollars  for 
each  and  every  day  during  which  said  report  is  delayed,  which 
shall  be  sued  for  by  the  attorney  general  in  the  name  of  the  state. 
For  the  purpose  of  suits  provided  for  herein,  venue  and  jurisdic- 
tion are  hereby  expressly  conferred  upon  the  courts  of  Travis 
County,  and  service  may  be  had  upon  any  officer  or  agent  of  any 
such  person,  firm,  company  or  corporation  within  this  state,  and 
if  no  officer  or  agent  can  be  found  within  this  state,  service  may 
be  had  by  citation  by  publication,  and  such  service  shall  in  all 
respects  be  held  legal  and  valid.  The  tax  provided  for  in  this 
article  shall  be  in  addition  to  all  other  taxes  levied  by  law. 

Sec.  12.  Every  individual,  joint  stock  association,  company, 
co-partnership  or  corporation,  whether  incorporated  under  the 
laws  of  this  state  or  of  any  other  state,  territory,  or  of  the  United 
States,  or  of  any  foreign  nation,  which  owns  or  operates  a  pipe 
line  or  lines  within  the  state  of  Texas,  whether  such  pipe  lines 
be  used  for  the  transmission  of  oil,  natural  or  artificial  gas,  wheth- 
er the  same  be  for  illuminating  or  fuel  purposes  or  for  any  other 
purpose,  or  for  steam,  for  heat  or  power,  or  for  the  transmission 
of  articles  by  pneumatic  or  other  power,  shall  be  deemed  and  held 
to  be  a  pipe  line  company ;  and  every  such  pipe  line  company 
shall,  on  or  before  the  first  day  of  April  of  each  and  every  year, 
and  quarterly  thereafter,  through  its  superintendent,  president, 
secretary  or  other  authorized  agent,  file  with  the  comptroller  a  re- 
port under  oath,  showing  the  amount  of  gross  receipts  from 
charges  and  freights  within  this  state,  paid  to  or  uncollected  by 
such  pipe  line  company  on  account  of  any  business  transacted  by 
it  in  the  capacity  of  a  pipe  line  company,  as  herein  defined,  during 
the  three  months  next  preceding ;  and  each  pipe  line  company  en- 
gaged in  conveying  oil  shall  report  as  a  part  of  its  gross  receipts 
such  sum  as  it  would  have  been  compelled  to  pay  for  conveying 
oil  owned  by  it  and  conveyed  for  itself,  if  it  had  employed  some 
other  pipe  line  company  to  convey  it.  Said  pipe  line  companies, 
at  the  time  of  filing  the  required  report,  shall  pay  to  the  treasurer 
of  the  state  of  Texas  two  per  cent  on  the  gross  receipts,  as  shown 
by  said  reports.  The  receipt  of  the  treasurer  of  the  state  shall 
be  evidence  of  the  payment  of  such  taxes.  Should  any  person, 
association  of  persons,  the  officers  or  agents  of  any  such  person. 


518  Taxation  in  Texas. 

association  of  persons  or  corporation  herein  named,  fail  to  make 
the  report  provided  for  in  this  section  for  more  than  thirty  days 
after  the  termination  of  any  quarter  of  the  year,  then  he  shall  be 
deemed  guilty  of  a  misdemeanor,  and  upon  conviction  shall  be 
fined  in  any  sum  not  less  than  fifty  dollars,  nor  more  than  one 
hundred  dollars.  Each  day  after  said  thirty  days  have  expired 
shall  be  deemed  a  separate  offense;  and  in  addition  thereto,  in 
the  event  of  the  failure  of  the  officers  or  agents  of  any  such 
company  or  corporation  to  make  such  report  and  pay  said  tax 
for  thirty  days  after  the  termination  of  any  quarter  of  the  year, 
each  and  every  such  company  or  corporation  so  failing  shall  for- 
feit and  pay  to  the  state  of  Texas  twenty-five  dollars  for  each 
day  said  report  and  payment  are  delayed,  which  forfeiture  shall 
be  sued  for  by  the  attorney  general,  in  the  name  of  the  state. 
For  the  purpose  of  suits  and  prosecutions  provided  for  herein, 
venue  and  jurisdiction  are  hereby  conferred  upon  the  courts  of 
Travis  County,  and  service  may  be  had  upon  any  officer  or  agent 
of  such  company  or  corporation  within  this  state,  and  such  service 
shall  in  all  respects  be  held  legal  and  valid.  The  tax  provided  for 
in  this  article  shall  be  in  addition  to  all  other  taxes  levied,  but 
the  provisions  of  this  section  shall  not  be  construed  to  levy  an 
additional  tax  on  gas  companies,  as  provided  for  elsewhere  in 
this  act. 

Sec.  13.  Every  individual,  joint  stock  company,  co-partner- 
ship or  corporation,  whether  incorporated  under  the  laws  of  this 
state  or  any  state  or  territory  of  the  United  States  or  of  any  for- 
eign country,  which  owns,  controls,  manages  or  leases  any  oil  well 
within  this  state,  shall  on  or  before  the  first  day  of  April  of  each 
and  every  year,  and  quarterly  thereafter,  through  its  superintend- 
ent, president,  secretary  or  other  authorized  agent,  or  in  person 
or  by  agent  (if  said  well  belongs  to  or  is  managed  or  controlled 
by  any  individual),  file  with  the  comptroller  a  report  under  oath, 
showing  the  total  amount  of  all  oil  produced  by  each  of  said  par- 
ties, during  said  next  preceding  quarter,  and  also  its  market  value. 
Said  oil  well  companies  or  individuals  owning,  controlling  or  man- 
aging oil  wells,  at  the  time  of  filing  the  required  report,  shall 
pay  to  the  treasurer  of  the  state  of  Texas,  one  per  cent  on  the 
gross  products  as  shown  by  said  reports,  said  amount  in  money  to 
be  fixed  at  the  average  market  value  of  said  product  during  the 


Tax  Upon  Gross  Receipts.  519 

preceding  quarter.  The  receipt  of  the  treasurer  of  the  state  shall 
be  evidence  of  the  payment  of  such  taxes.  Should  any  person, 
association  of  persons,  the  officers  or  agents  of  any  such  persons, 
association  of  persons  or  corporations  herein  named,  fail  to  make 
the  report  provided  for  in  this  chapter,  for  more  than  thirty  days 
after  the  termination  of  any  quarter  of  the  year,  then  he  shall 
be  deemed  guilty  of  a  misdemeanor,  and  upon  conviction  shall  be 
fined  in  any  sum  not  less  than  fifty  dollars,  nor  more  than  one 
hundred  dollars.  Each  day  after  said  thirty  days  have  expired 
shall  be  deemed  a  separate  offense.  And  in  addition  thereto,  in 
the  event  of  the  failure  of  the  officers  or  agents  of  any  such  com- 
pany or  corporation,  to  make  such  report  and  pay  said  tax  for 
thirty  days  after  the  termination  of  any  quarter  of  the  year,  each 
and  every  such  company  or  corporation  so  failing  shall  forfeit 
and  pay  to  the  state  of  Texas  twenty-five  dollars  for  each  day 
said  report  and  payment  are  delayed,  which  forfeiture  shall  be 
sued  for  by  the  attorney  general,  in  the  name  of  the  state.  For 
the  purpose  of  suits  and  prosecutions  provided  for  herein,  venue 
and  jurisdiction  are  hereby  conferred  upon  the  courts  of  Travis 
County,  and  service  may  be  had  upon  any  officer  or  agent  of  such 
company  or  corporation  within  this  state,  and  such  service  shall 
in  all  respects  be  held  legal  and  valid.  The  tax  provided  for  in 
this  article  shall  be  in  addition  to  all  other  taxes  levied. 

Sec.  14.  Except  as  herein  stated,  all  taxes  levied  by  this  act 
shall  be  in  addition  to  all  other  taxes  now  levied  by  law ;  pro- 
vided, that  nothing  herein  shall  be  construed  as  authorizing  any 
county  or  city  to  levy  an  occupation  tax  on  the  business  taxed  by 
this  act. 

Sec.  15.  If  for  any  reason  the  comptroller  of  public  accounts 
is  not  satisfied  with  any  report  required  to  be  made  herein,  he 
may  require  a  further  supplemental  report  from  any  such  person, 
corporation,  co-partnership  or  association,  containing  information 
and  data  upon  such  matters  as  he  may  need  or  deem  necessary  to 
ascertain  the  true  and  correct  amount  of  all  taxes  due  by  any 
such  person,  firm  or  corporation.  Every  statement  or  report  re- 
quired by  this  act  shall  have  affixed  thereto  the  affidavit  of  the 
president,  vice-president,  secretary  or  treasurer  of  the  person,  cor- 
poration, co-partnership  or  association,  or  one  of  the  persons  or 


520  Taxation  in  Texas. 

members  of  the  partnership  making  the  same,  to  the  effect  that 
the  statement  is  true.  The  comptroller  shall  prepare  blanks  to  be 
used  in  making  the  reports  required  by  this  act. 

Sec.  16.  If  the  comptroller  has  any  reason  to  believe,  or  does 
believe,  that  any  person,  firm  or  corporation  subject  to  the  pro- 
visions of  this  act  has  made  any  false  return,  or  has  failed  or 
omitted  to  make  a  full  return,  then  the  comptroller,  or  some  per- 
Sion  acting  for  him,  shall  file  an  affidavit  with  the  district  clerk  of 
Travis  County,  or  with  any  district  judge  of  Travis  County,  in 
vacation,  setting  forth  his  belief  that  such  person,  firm  or  cor- 
poration, to  be  named  in  the  affidavit,  has  unlawfully  omitted  from 
a  certain  specified  tax  return,  a  true  and  full  statement,  and  that 
such  person,  firm  or  corporation,  or  some  other  person,  firm  or 
corporation  to  be  named  in  the  affidavit,  has  in  his  or  its  posses- 
sion certain  specified  books  or  papers  containing  evidence  tending 
to  show  such  unlawful  omission.  Upon  the  filing  of  such  affidavit 
a  writ  shall  issue  forthwith,  and  be  served  by  any  proper  officer, 
requiring  the  person,  firm  or  corporation  having  possession  of 
such  books  or  papers  to  permit  the  inspection  by  the  comptroller 
or  by  the  revenue  agent  of  the  state  of  Texas,  or  so  much  thereof 
as  may  be  specially  named  in  such  writ,  and  being  only  such  books 
and  papers  or  so  much  thereof  as  may  contain  the  evidence  tend- 
ing to  show  the  unlawful  omission  complained  of  in  said  affidavit, 
and  the  court  or  the  judge  thereof  in  vacation,  issuing  such  writ 
shall  for  the  purpose  of  enforcing  obedience  thereto  possess  and 
exercise  all  the  powers  usually  possessed  and  exercised  by  it  or 
him  in  contempt  proceedings.  All  costs  incurred  on  account  of 
the  filing  of  any  affidavit  of  the  issuance  of  the  writ  thereon  and 
of  the  service  of  such  writ,  shall  be  charged  against  the  state  of 
Texas ;  provided,  however,  if  as  a  result  of  such  proceedings  it 
is  found  that  such  designated  person,  firm  or  corporation  has  un- 
lawfully omitted  from  the  report  required  herein  any  statement 
or  statements,  then  the  state  shall  recover  the  costs  from  such 
person,  firm  or  corporation.    Acts  1905,  pp.  358  to  369. 

§  919.     Gross  receipts  tax  bill. 

Sess.  Laws  1905,  p.  336,  Chap.  141,  imposing  on  railroad  com- 
panies a  tax  equal  to  one  per  cent  of  their  gross  receipts,  when 
construed  in  connection  with  Chap.  19,  p.  21,  and  Chap.  72,  p. 
100,  amending  Franchise  Act,  p.  351,  Chap.  146,  imposing  taxes 


Tax  Upon  Gross  Receipts.  521 

on  intangible  assets,  Chap.  148,  p.  359,  levying  a  tax  on  the  gross 
receipts  of  certain  corporations,  and  Chap.  8,  p.  437,  providing  an 
increase  of  the  ad  valorem  tax,  all  passed  by  the  same  session 
of  the  legislature,  imposes  a  tax  on  the  gross  receipts  of  rail- 
roads, and  not  an  occupation  tax. 

Sess.  Laws  1905,  p.  336,  Chap.  141,  imposing  a  tax  on  the 
gross  receipts  of  railroads  from  both  state  and  interstate  com- 
merce, is  unconstitutional  as  a  regulation  of  interstate  commerce. 

A  tax  imposed  on  the  gross  receipts  of  railroads  by  Sess.  Laws 
1905,  p.  336,  Chap.  141,  is  not  a  franchise  act. 

The  tax  imposed  by  Sess,  Laws  1905,  p.  336,  Chap.  141,  on  the 
gross  receipts  of  railroads,  is  not  an  income  tax. 

The  tax  on  the  gross  receipts  of  railroads,  imposed  by  Sess. 
Laws  1905,  p.  336,  Chap.  141,  if  regarded  as  an  income  tax,  is 
unconstitutional  as  class  legislation. 

Sess.  Laws  1905,  p.  336,  Chap,  141,  imposing  a  tax  on  railroads 
equal  to  a  certain  per  cent  of  their  "gross  receipts  from  all  sources 
whatsoever,"  includes  receipts  from  interstate  commerce,  as  well 
as  from  local  traffic. 

Sess.  Laws  1905,  p.  336,  Chap.  141,  imposing  a  tax  on  the  gross 
receipts  of  railroads  from  both  interstate  commerce  and  local 
traffic,  and  not  undertaking  to  separate  the  state  and  interstate 
business,  is  not  divisible,  but  is  wholly  void,  on  account  of  the 
invalidity  of  the  provision  for  taxation  of  receipts  from  interstate 
commerce.  Galveston  H.  &  S,  A.  Ry.  Co.  v.  Davidson,  93  S.  W. 
436 ;  Tex.  &  P.  Ry.  Co.  v.  Stephens,  93  S.  W.  436 ;  Gulf  C.  &  S. 
F.  Ry.  Co.  V.  Davidson,  93  S.  W.  436;  /.  &  G.  N.  Ry.  Co.  v. 
Stephens,  93  S.  W.  436 ;  St.  L.  S.  IV.  Ry.  Co.  v.  Davidson,  93  S. 
W.  436 ;  State  v.  G.  H.  &  H.  Ry.  Co.,  93  S.  W.  460;  T.  &  P.  Ry. 
Co.  V.  State,  93  S.  W.  461 ;  St.  L.  S.  W.  Ry.  Co.  v.  State,  93  S. 
W.  461 ;  M.,  K.  &  T.  Ry.  Co.  v.  State,  93  S.  W.  462 ;  H.  E.  &  W. 
T.  Ry.  Co.  V.  State,  93  S.  W.  462. 

The  above  contains  the  opinions  of  the  court  of  civil  appeals, 
which  was  reversed,  supreme  court  holding  as  follows,  to-wit : 

Const.  U.  S.,  Amend.,  Art.  14,  Sec.  1,  providing  that  no  state 
shall  deny  to  any  person  within  its  jurisdiction,  the  equal  protec- 
tion of  the  laws,  does  not  require  uniformity  or  equality  in  the 
levying  of  taxes  by  a  state  government,  and  a  state  legislature 
may  classify  the  different  persons  or  subjects  of  taxation  and 


522  Taxation  in  Texas. 

where  the  tax  levied  on  each  class  is  equal  and  uniform  as  to 
that  class,  the  constitutional  provision  is  complied  with. 

Gen.  Laws  1905,  p.  336,  Chap.  141,  imposing  on  railroad  com- 
panies managing  a  line  of  railroad  ih  the  state  for  the  transporta- 
tion of  passengers,  freight  and  baggage,  or  either,  an  annual  tax 
equal  to  one  per  cent  of  their  gross  receipts,  acts  uniformly  on  all 
companies  of  the  class  specified  and  does  not  deny  to  them  the 
equal  protection  of  the  laws  in  violation  of  Const.  U.  S.,  Amend., 
Art.  14,  Sec.  1. 

Gen.  Laws  1905,  p.  336,  Chap.  141,  imposing  on  railroad  com- 
panies a  tax  of  one  per  cent  on  their  gross  receipts,  requiring  rail- 
road companies  to  make  reports  on  which  the  assessments  are 
made  and  providing  that  the  levy  can  only  be  enforced  by  regular 
proceedings  in  court,  does  not  deprive  a  railroad  company  of  its 
property  without  due  process  of  law  in  violation  of  the  Four- 
teenth Amendment  of  the  Federal  Constitution. 

A  construction  of  a  statute  that  renders  it  unconstitutional 
will  not  be  adopted  where  a  constitutional  purpose  can  fairly  be 
derived  from  its  term. 

The  tax  on  railroads  imposed  by  Gen.  Laws  1905,  p.  336,  Chap. 
141,  imposing  on  railroad  companies  a  tax  equal  to  one  per  cent 
of  their  gross  receipts,  is  an  occupation  tax,  and  is  not  a  tax  on 
the  gross  receipts  of  railroads,  and  is  not  an  interference  with 
interstate  commerce  in  violation  of  Const.  U.  S.,  Art.  1,  Sec.  8, 
Subd.  3,  the  reference  to  the  gross  receipts  being  merely  a  means 
by  which  to  ascertain  the  amount  of  the  tax. 

The  tax  on  railroads  imposed  by  Gen.  Laws  1905,  p.  336,  Chap. 
141,  imposing  on  railroads  a  tax  equal  to  one  per  cent  of  their 
gross  receipts,  being  an  occupation  tax,  is  not  objectionable  as 
imposing  double  taxation  because  the  franchises  of  railroads  are 
subject  to  ad  valorem  taxes. 

The  tax  levied  on  a  corporation  for  the  exercise  of  the  privi- 
lege of  carrying  on  its  business  is  an  occupation  tax  within  Const., 
Art.  8,  Sec.  1,  authorizing  the  legislature  to  impose  occupation 
taxes  on  persons  and  corporations  doing  business  in  the  state. 

The  tax  imposed  on  the  gross  receipts  of  railroads  by  Gen. 
Laws  1905,  p.  336,  Chap.  141,  is  a  uniform  occupation  tax  on 
railroads  of  the  same  class,  and  the  statute  is  not  in  conflict  with 
Const.,  Art.  8,  Sec.  2,  providing  that  all  occupation  taxes  shall  be 
uniform  on  the  same  class  and  subjects. 


Tax  Upon  Gross  Receipts.  523 

The  occupation  tax  imposed  on  railroads  by  Gen.  Laws  1905, 
p.  336,  Chap.  141,  imposing  on  railroads  a  tax  equal  to  one  per 
cent  of  their  gross  receipts,  is  not  unequal,  because  the  gross  earn- 
ings of  some  of  the  railroads  consist  more  largely  in  receipts  from 
interstate  business  than  others. 

Const.,  Art.  8,  Sec.  1,  providing  that  the  occupation  tax  levied 
by  any  county,  city,  etc.,  for  any  year  on  persons  or  occupations 
pursuing  any  profession  or  business,  shall  not  exceed  one-half  of 
the  taxes  levied  by  the  state  for  the  same  period  on  such  profes- 
sion or  business,  confers  no  authority  on  counties,  cities,  etc.,  to 
levy  a  tax,  but  is  a  limitation  on  the  power  of  the  legislature  to 
grant  such  authority. 

The  provision  of  Rev.  St.  1895,  Art.  5050,  conferring  on  the 
commissioners'  courts  of  the  counties  of  the  state,  the  power  to 
levy  taxes,  that  the  court  "shall  have  the  right  to  levy  one-half  of 
the  occupation  taxes  levied  by  the  state  on  all  occupations  not 
herein  otherwise  specially  exempted"  applies  only  to  the  subjects 
mentioned  in  the  article,  which  specifies  a  number  of  occupations 
that  are  subject  to  taxation,  and  does  not  confer  on  'the  court 
power  to  levy  taxes  on  an  occupation  thereafter  made  the  subject 
of  taxation  by  the  state. 

Since  Gen.  Laws  1905,  p.  336,  Chap.  141,  imposing  on  railroads 
a  tax  equal  to  one  per  cent  of  their  gross  receipts,  nor  any  other 
statute,  do  not  authorize  any  county,  city,  or  town  to  kvy  on  a 
railroad  any  occupation  tax  for  the  exercise  of  its  franchise  to 
operate  and  carry  on  its  business  as  a  carrier,  the  statute  is  not 
in  conflict  with  Const.,  Art.  8,  Sec.  1,  providing  that  the  occupa- 
tion tax  levied  by  any  county,  city,  etc.,  on  corporations  pursuing 
any  business,  shall  not  exceed  one-half  of  the  taxes  levied  by  the 
state  on  such  business. 

Gen.  Laws  1905,  p.  336,  Chap.  141,  in  force  July  15,  1905,  im- 
posing on  railroad  companies  an  annual  tax  equal  to  one  per  cent 
of  their  gross  receipts,  can  not  be  construed  to  embrace  the  whole 
of  the  year  1905,  and  does  not  entitle  the  state  to  collect  the  full 
annual  tax  for  that  year ;  for  so  construing  the  statute,  it  would 
be  retroactive,  and  in  conflict  with  Const.,  Art.  1,  Sec.  16,  prohib- 
iting the  passage  of  retroactive  laws. 

Gen.  Laws  1905,  p.  336,  Chap.  141,  in  force  July  15,  1905,  im- 
posing on  railroads  an  annual  tax  equal  to  one  per  cent  of  their 
gross  receipts,  though  invalid  as  imposing  a  tax  for  the  part  of 


524  Taxation  in  Texas. 

the  year  prior  to  the  time  it  took  effect,  is  not  void  as  to  the  re- 
mainder of  the  year,  but  the  court  will  give  effect  to  it  for  the 
remainder  of  the  year. 

Since  the  word  "fine"  in  Const.,  Art.  1,  Sec.  13,  declaring  that 
excessive  fines  shall  not  be  imposed,  includes  "penalties,"  the 
section  applies  to  penalties  prescribed  by  an  act  for  the  failure  of 
a  taxpayer  to  pay  taxes  imposed. 

Gen.  Laws  1905,  p.  336,  Chap.  141,  imposes  on  railroads  a  tax 
equal  to  one  per  cent  of  their  gross  receipts,  and  prescribes  a 
penalty  of  $200  each  day  a  railroad  makes  a  default  in  the  pay- 
ment thereof.  The  taxes  claimed  by  the  state  from  one  railroad 
company  amounted  to  $74,724,  and  the  penalties  demanded 
amounted  to  $73,000.  The  taxes  demanded  from  another  rail- 
road company  amounted  to  $1,555,  and  the  penalty  $73,000.  Held, 
that  the  penalties  were  excessive,  rendering  the  statute  void,  so 
far  as  it  imposed  penalties. 

Where  a  railroad  could  not  pay  the  tax  actually  due,  and  a 
tender  thereof  to  the  state  treasurer  would  be  useless,  as  he  could 
not  accept  the  same,  the  state  claiming  a  larger  tax,  could  not 
recover  penalties  imposed  for  non-payment  of  taxes,  the  state 
being  in  the  wrong. 

Gen.  Laws  1905,  p.  336,  Chap.  141,  imposing  on  railroad  com- 
panies a  tax  equal  to  one  per  cent  of  their  gross  receipts,  and 
providing  that  for  the  purpose  of  determining  the  amount  of 
taxes,  the  officers  of  railroads  shall  annually  report  the  gross  re- 
ceipts from  every  source  whatever,  imposes  a  tax  on  the  gross 
receipts  of  railroads  derived  from  any  source.  State  v.  G.  H.  & 
S.  A.  Ry.  Co.,  97  S.  W.  71,  100  Tex.  153. 

The  title  of  an  act,  entitled  an  act  imposing  a  tax  on  railroads 
operating  any  line  of  road  in  the  state  for  the  transportation  of 
passengers,  freight,  and  baggage  equal  to  one  per  cent  of  their 
gross  receipts,  is  sufficiently  broad  to  include  a  provision  im- 
posing a  gross  earnings  tax  on  all  corporations  operating  any 
line  of  railroad  in  the  state,  and  to  embrace  a  corporation  owning 
a  line  within  and  one  without  the  state. 

The  statute  imposing  on  railroads  a  tax  on  their  gross  receipts 
imposes  a  tax  on  the  gross  receipts  of  railroads  derived  from 
whatever  source.    State  v.  M.,  K.  &  T.  Ry.  Co.,  100  S.  W.  146. 


Tax  Upon  Gross  Receipts.  525 

§  92C.     Injunction  will  not  lie  to  restrain  officers. 

Gen.  Laws  1905,  p.  336,  Chap.  141,  imposes  on  railroad  com- 
panies an  occupation  tax  equal  to  a  specified  per  cent  of  its  gross 
receipts,  and  for  the  purposes  of  determining  the  amount  of  the 
tax  the  railroads  are  required  to  report  to  the  comptroller  of  the 
state  the  gross  receipts  for  the  preceding  year.  The  comptroller 
is  required  upon  such  return  to  estimate  the  tax  and  assess  and 
enforce  its  collection,  and  the  attorney  general  is  authorized,  on 
request  of  the  comptroller,  to  bring  suit  in  the  name  of  the  state 
to  recover  the  tax,  and  under  the  statute  the  only  duty  of  the 
state  treasurer  is  to  receive  the  tax  when  paid.  Held,  that  injunc- 
tion would  not  lie  to  restrain  the  comptroller,  attorney  general, 
and  treasurer  from  performing  their  duties  under  the  statute  on 
the  ground  that  the  statute  was  unconstitutional,  as  there  is  "no 
statute  giving  a  lien  on  property  for  an  occupation  tax,  and  the 
only  way  in  which  the  tax  could  be  enforced  was  by  legal  proceed- 
ings, and  the  railroad  had  an  adequate  remedy  at  law.  Stephens 
V.  Texas  &  P.  Ry.  Co.,  97  S.  W.  309,  100  Tex.  177. 

§  921.     Not  applicable  where  road  is  incorporated  under  act 
of  congress. 

Sess.  Laws  1905,  p.  336,  Chap.  141,  imposing  a  tax  on  the  gross 
receipts  of  railroads,  is  not  enforceable  against  the  Texas  &  Pa- 
cific Railway  Company,  incorporated  under  an  act  of  Congress 
for  the  purpose  of  carrying  on  a  railroad  business  in  the  state  of 
Texas ;  and  this  notwithstanding  the  acceptance  of  the  act  of  the 
legislature  of  Texas  of  May  2,  1873,  which,  in  granting  certain 
rights  and  privileges  to  the  railroad,  provided  that  it  should  be 
subject  to  such  general  laws  as  might  be  applicable  to  other  rail- 
roads, and  that  all  the  property  of  the  corporation  should  be  sub- 
ject to  taxation,  and  notwithstanding  that  the  railroad  possesses 
certain  franchises  from  the  state.  State  v.  Texas  &  P.  Ry.  Co., 
98  S.  W.  834,  100  Tex.  279;  State  v.  M.,  K.  &  T.  Ry.  Co.,  100 
S.  W.  146. 

§  922.     Taxes  on  corporate  privileges. 

The  occupation  tax  on  railroads,  imposed  by  the  statute  im- 
posing on  railroads  doing  business  in  the  state  a  tax  on  their 
gross  receipts,  is  not  in  conflict  with  Const.,  Art.  8,  Sec.  2,  re- 
quiring occupation  taxes  to  be  uniform  on  the  same  class  of  sub- 


526  Taxation  in  Texas. 

jects,  though  the  statute  can  not  impose  a  tax  on  a  railroad  in- 
corporated under  the  act  of  Congress  and  doing  business  in  the 
state. 

The  statute  imposing  a  tax  on  the  gross  receipts  of  railroads, 
provides  that  the  tax  shall  not  be  levied  on  a  railroad  which  shall 
have  paid  the  tax  on  its  intangible  assets,  as  provided  for  by 
.Acts  Reg.  Sess.  29th  Leg.,  p.  356,  Chap.  146,  providing  for  the 
taxation  of  the  intangible  assets  of  railroads.  The  former  act  w^as 
in  force  during  1905,  while  the  latter  act  applied  to  taxation  for 
1906,  and  succeeding  years.  Held,  that  the  validity  of  a  gross 
earnings  tax  for  1905  was  controlled  by  the  former  statute,  and 
the  question  as  to  the  operation  of  the  two  statutes  on  any  tax 
that  might  be  assessed  after  1905  was  not  involved.  State  v.  M., 
K.  &  T.  Ry.  Co.,  100  S.  W.  146. 

§  923.    Oil  companies. 

Acts  29th  Leg.,  p.  358,  Chap.  148,  taxing  all  persons  engaged 
in  the  operation  of  oil  wells  one  per  cent  on  the  gross  products  of 
the  wells  as  shown  by  certain  reports  required,  is  not  unconstitu- 
tional for  non-uniformity  or  inequality. 

Acts  29th  Leg.,  p.  359,  Chap.  148,  imposes  a  tax  of  one  per 
cent  on  the  gross  products  of  oil  wells,  and  provides  that  a  failure 
to  make  certain  reports  required  by  the  act  for  more  than  thirty 
days  after  the  termination  of  any  quarter  of  the  year  shall  consti- 
tute a  misdemeanor,  that  on  conviction  the  party  guilty  shall  be 
fined  in  a  sum  not  less  than  $50  nor  more  than  $100,  and  that 
each  day  after  the  thirty  days  have  expired  shall  be  deemed  a  sep- 
arate offense.  The  act  also  provides  that  a  failure  to  make  re- 
port and  pay  the  tax  within  thirty  days  after  the  termination  of 
the  quarter  shall  render  the  party  or  corporation  liable  to  a  pen- 
alty of  $25  for  each  day  the  report  and  payment  be  delayed. 
Held,  that  the  penalties  provided  for  were  disproportionate  to  the 
amount  of  the  taxes  assessable  under  the  act,  so  that  in  an  action 
to  recover  the  taxes  it  was  proper  for  the  court  to  refuse  to  ren- 
der judgment  for  penalties.  Producers'  Oil  Co.  v.  Stephens,  99 
S.  W.  157,  44  Tex.  Civ.  App.  327. 

Acts  29th  Leg.,  p.  364,  Chap.  148,  Sec.  9,  imposing  an  occupa- 
tion tax  on  wholesale  dealers  in  petroleum  products  in  addition 
to  general  taxes,  was  not  invalid  because  such  occupation  tax  was 


Tax  Upon  Gross  Receipts.  527 

an  ad  valorem  tax,  levied  on  the  value  of  the  corporation's  prop- 
erty, and  with  the  general  tax  levy  exceeded  the  constitutional 
rate  of  taxation. 

Acts  29th  Leg.,  p.  364,  Chap.  148,  Sec.  9,  provides  that  every 
person,  association,  or  corporation  engaged  in  wholesaling  petro- 
leum products  shall  pay  an  annual  tax  of  two  per  cent  on  the 
gross  receipts  from  sales  of  such  products,  and  on  the  gross  value 
of  articles  derived  from  petroleum,  possessed,  handled,  or  dis- 
posed of  in  any  other  manner  than  by  sale  within  the  state.  Held, 
that  the  fact  that  the  act  imposed  similar  taxes  on  persons  en- 
gaged in  wholesaling  other  goods  and  products  at  less  rates  than 
that  imposed  on  wholesalers  of  oil  products  did  not  render  the  act 
'  unconstitutional  for  inequality,  or  as  denying  wholesalers  of  oil 
products  the  equal  protection  of  the  laws. 

In  determining  the  amount  of  an  occupation  tax  levied  on  a 
wholesale  oil  dealer,  as  provided  by  Acts  29th  Leg.,  p.  358,  Chap. 
148,  wholesale  sales  to  consumers,  as  well  as  sales  to  retailers, 
were  properly  included  in  determining  the  volume  of  the  taxpay- 
er's business. 

Acts  29th  Leg.,  p.  367,  Chap.  148,  Sec.  12,  imposes  a  tax  on 
every  individual,  etc.,  owning  or  operating  a  pipe  line  or  lines 
for  the  transportation  of  oil,  gas,  steam,  or  other  articles  by  pneu- 
matic or  other  power  for  others  for  hire  or  profit.  Held,  that 
such  provision  was  not  subject  to  constitutional  objection  for  non- 
uniformity,  because  the  owners  of  pipe  lines  employing  the  same 
exclusively  for  their  own  purposes  are  not  also  subjected  to  the 
tax. 

Acts  29th  Leg.,  p.  367,  Chap.  148,  Sec.  12,  imposes  an  occu- 
pation tax  on  the  owners  of  pipe  lines  for  the  transportation  of 
various  substances  for  hire,  and  then  declares  that  each  pipe  line 
company  engaged  in  conveying  oil  shall  report  as  a  part  of  its 
gross  receipts  such  sums  as  it  would  have  been  compelled  to  pay 
for  conveying  oil  owned  by  it  and  conveyed  for  itself  if  it  had  em- 
ployed some  other  pipe  line  company  to  convey  it,  and  imposes  a 
tax  of  two  per  cent  on  the  gross  receipts  as  shown  by  such  report. 
Held,  that,  in  the  absence  of  proof  that  any  pipe  line  companies 
or  persons  transporting  other  things  mentioned  in  such  section 
did  not  also  transport  oil,  the  section  could  not  be  held  uncon- 
stitutional as  discriminating  against  the  owners  of  pipe  lines  for 
oil. 


528  Taxation  in  Texas. 

The  fact  that  all  persons  owning  or  controlling  pipe  lines,  with- 
out reference  to  the  products  transported,  are  included  in  a  single 
class  in  the  first  part  of  the  section,  and  taxed  as  such,  did  not 
preclude  the  legislature  from  making  a  sub-classification,  and 
providing  different  rules  for  the  purpose  of  arriving  at  the  amount 
to  be  charged  on  the  occupation  of  transporting  products  for  hire 
by  pipe  lines. 

Acts  29th  Leg.,  p.  358,  Chap.  148,  imposes  an  occupation  tax 
on  the  owners  of  pipe  lines  used  for  hire  or  profit,  and  requires 
a  report  showing  as  a  part  of  the  gross  receipts  of  such  compa- 
nies such  sums  as  it  would  have  been  compelled  to  pay  for  con- 
veying oil  owned  by  it  and  conveyed  for  itself  if  it  had  employed 
some  other  pipe  line  company  to  convey  it.  Held,  that  such 
section  was  applicable  to  a  corporation  operating  a  pipe  line  for 
its  own  business,  though  there  was  no  connection  between  its  lines 
and  those  of  others  carrying  oil,  so  that  it  could  not  have  em- 
ployed the  lines  of  others.  Texas  Company  v.  Stephens,  103  S. 
W.  481,  100  Tex.  628. 

§  924.     Interstate  commerce  does  not  apply. 

The  commerce  clause  of  the  Federal  Constitution  does  not  apply 
to  the  levy  of  occupation  taxes  on  a  business  carried  on  wholly 
within  the  state,  though  including  sales  and  deliveries  outside 
the  state.  Texas  Company  v.  Stephens,  103  S,  W.  481,  100  Tex. 
628. 


CHAPTER  XLVI. 

INSURANCE  COMPANIES. 

Sec.  Sec. 

925.  Act  of  1905.  927.  Insurance  companies 

926.  Occupation  tax  on  gross  pre-      928.  Gross  receipts. 

miums, 

§  925.     Act  of  1905. 

Art.  5243e.  Every  life,  fire,  marine,  accident  or  other  insur- 
ance company,  at  the  time  of  its  fiHng  its  annual  statement,  shall 
report  to  the  commissioner  of  insurance  the  gross  amount  of  pre- 
miums received  in  this  state,  and  from  persons  residing  in  this 
'state,  during  the  preceding  year,  and  each  of  such  life  insurance 
companies  shall  pay  an  annual  tax  of  two  per  cent  of  such  gross 
premium  receipts ;  and  each  of  such  fire,  marine,  accident  or  other 
insurance  companies  shall  pay  an  annual  tax  of  one  and  one-half 
per  cent  of  such  gross  premium  receipts ;  and  the  gross  premium 
receipts  are  understood  to  be  the  premium  receipts  reported  to 
the  commissioner  of  insurance  by  the  insurance  companies,  on 
sworn  statements.  Upon  receipt  by  him  of  sworn  statements, 
showing  the  gross  premium  receipts  by  such  company,  the  com- 
missioner shall  certify  to  the  state  treasurer  the  amount  of  tax 
due  by  each  company,  which  tax  shall  be  paid  to  the  state  treas- 
urer, for  the  use  of  the  state,  on  or  before  the  first  day  of  March 
following,  whose  receipt  shall  be  evidence  of  the  payment  of  such 
taxes,  and  no  insurance  company  shall  receive  a  permit  to  do 
business  in  this  state  until  such  taxes  are  paid.  Provided  that 
if  any  such  insurance  company  shall  have  as  much  as  one-fourth 
of  its  entire  assets,  as  shown  by  the  sworn  statement,  to  be  filed 
with  the  commissioner  of  insurance,  invested  in  any  or  all  of  the 
following  property  or  securities,  to-wit:  real  estate  in  the  state 
of  Texas,  bonds  of  this  state  or  of  any  county,  incorporated  city 
or  town  of  this  state,  or  other  property  in  this  state  in  which  by 
law  such  companies  may  invest  their  funds,  then  the  annual  tax 
of  any  such  company  shall  be  one-half  of  one  per  cent  of  its  said 
gross  premium  receipts;  and  if  any  such  company  shall  have  in- 
vested as  aforesaid  as  much  as  one-half  of  its  said  assets,  then 
84 


530  Taxation  in  Texas. 

the  annual  tax  of  such  company  shall  be  one-fourth  of  one  per 
cent  of  its  said  gross  premium  receipts ;  provided,  that  the  provi- 
sions of  this  act  shall  not  apply  to  the  Order  of  the  Knights  of 
Honor,  Order  of  Railroad  Conductors,  and  other  kindred  and  like 
fraternal  insurance  orders.  Provided,  that  all  insurance  com- 
panies affected  by  this  act  shall  pay  the  same  franchise  tax  levied 
by  existing  law  upon  other  corporations  of  like  capital,  stock, 
surplus  and  undivided  profit,  all  of  which  is  respectfully  sub- 
mitted.   Act  of  1905,  p.  Z7Z. 

Article  5243e.  Every  life,  fire,  fire  and  marine,  marine,  marine 
and  inland  insurance  company,  and  every  life  and  accident,  life 
and  health,  accident,  credit,  title,  steam  boiler,  live  stock  and  cas- 
ualty company  and  all  other  insurance  companies  doing  business 
in  this  state,  except  fidelity  and  guaranty  companies,  at  the  time 
of  filing  its  annual  statement  shall  report  to  the  commissioner  of  . 
agriculture,  insurance,  statistics  and  history  the  gross  amount  of 
premiums  received  in  the  state,  upon  property  located  in  this 
state,  and  from  persons  residing  in  this  state  during  the  preceding 
year,  and  each  of  such  companies  shall  pay  an  annual  tax  upon 
such  gross  premium  receipts  as  follows :  Each  life  insurance  com- 
pany shall  pay  a  tax  of  two  and  one-quarter  per  cent  of  such  gross 
premiums ;  all  other  companies  enumerated  above  shall  pay  a  tax 
of  one  and  three-quarters  per  cent  of  such  gross  premiums ;  pro- 
vided, that  any  company  doing  a  life  insurance  business  in  con- 
nection with  any  other  class  of  insurance  business  enumerated 
shall  pay  the  same  tax  upon  the  gross  receipts  from  life  insur- 
ance business  as  is  levied  against  the  receipts  of  a  company  con- 
ducting a  purely  life  insurance  business ;  and  the  gross  premium 
receipts  are  understood  to  be  the  premium  receipts  reported  to 
the  commissioner  of  agriculture,  insurance,  statistics  and  history 
by  the  insurance  companies  upon  the  sworn  statement  of  two 
principal  officers  of  such  companies. 

Upon  receipt  by  him  of  sworn  statements  showing  the  gross 
and  net  premium  receipts  by  such  companies  the  commissioner 
shall  certify  to  the  state  treasurer  the  amount  of  taxes  due  by 
each  company,  which  tax  shall  be  paid  to  the  state  treasurer  for 
the  use  of  the  state  on  or  before  the  first  day  of  March  following, 
whose  receipt  shall  be  evidence  of  the  payment  of  such  taxes,  and 
no  insurance  company  shall  receive  a  permit  to  do  business  in  this 
state  until  such  taxes  are  paid. 


Insurance  Companies.  531 

/ 
Provided,  that  if  any  such  insurance  company  shall  have  as 

much  as  one-fourth  of  its  entire  assets,  as  shown  by  said  sworn 
statement,  invested  in  any  or  all  of  the  following  securities ;  real 
estate  in  the  state  of  Texas,  bonds  of  this  state  or  of  any  county, 
incorporated  city  or  town  of  this  state,  or  other  property  in  this 
state  in  which  by  law  such  companies  may  invest  their  funds,  then 
the  annual  tax  of  any  such  company  shall  be  one-half  of  one  per 
cent  of  its  said  gross  premium  receipts ;  and  if  any  such  com- 
pany shall  have  invested,  as  aforesaid,  as  much  as  one-half  of 
its  said  assets,  then  the  annual  tax  of  such  company  shall  be  one- 
fourth  of  one  per  cent  of  its  said  gross  premium  receipts,  as 
above  defined ;  and  provided  further,  that  no  occupation  tax  shall 
be  levied  on  insurance  companies  herein  subjected  to  a  gross  pre- 
mium receipt  tax,  by  any  county,  city  or  town. 

The  tax  aforesaid  shall  constitute  all  taxes  and  license  fees 
collectible  under  the  laws  of  this  state  against  any  such  insur- 
ance companies,  and  no  occupation  or  other  tax  shall  be  levied 
on  or  collected  from  any  insurance  company  by  any  county,  city 
or  town ;  but  this  act  shall  not  be  construed  to  prohibit  the  levy 
and  collection  of  state,  county  and  municipal  taxes  upon  the  real 
and  personal  property  of  such  companies.  Provided,  that  this 
shall  not  relieve  agents  from  paying  an  occupation  tax.  Act  of 
1905,  p.  427. 

§  926.     Occupation  tax  on  gross  premium. 

Sec.  5.  Each  life  insurance  company,  not  organized  under 
the  laws  of  this  state,  doing  business  in  this  state,  shall  on  or  be- 
fore the  first  day  of  March,  1910,  and  annually  thereafter,  make 
a  report  to  the  commissioner  of  insurance  and  banking  of  this 
state,  which  report  shall  be  sworn  to  by  either  the  president  or 
a  vice-president,  and  the  secretary  or  treasurer  of  such  company, 
showing  the  gross  amount  of  premiums  collected  during  the  year 
ending  on  December  31,  preceding,  from  citizens  of  this  state 
upon  policies  of  insurance ;  and  each  such  company  shall  pay  an- 
nually an  occupation  tax  equal  to  three  per  cent  of  such  gross 
premium  receipts,  such  occupation  taxes  to  be  for  and  on  account 
of  the  business  transacted  within  this  state  during  the  calendar 
year  in  which  such  premiums  were  collected  or  for  that  portion 
thereof  during  which  the  company  shall  have  transacted  business 
in  this  state  while  this  act  was  in  force  and  effect ;  and  upon  re- 


532  Taxation  in  Texas. 

ceipt  of  such  sworn  statements  showing  the  gross  premium  re- 
ceipts of  such  company,  the  commissioner  of  insurance  and 
banking  of  this  state  shall  certify  to  the  treasurer  of  this  state  the 
amount  of  taxes  due  by  each  such  company  for  the  preceding 
year,  which  taxes  shall  be  paid  to  the  state  treasurer  for  the  use 
of  the  state,  by  such  company ;  upon  his  receipt  of  such  certificate, 
the  treasurer  shall  execute  a  receipt  therefor,  which  receipt  shall 
be  evidence  of  the  payment  of  such  taxes,  and  no  such  life  insur- 
ance company  shall  receive  a  permit  to  do  business  in  this  state 
until  such  taxes  are  paid;  provided,  that  when  the  report  of  the 
investments  in  Texas  securities  of  any  company  as  of  December 
31,  of  any  year,  shall  show  that  such  company  had  invested  on 
said  date  as  much  as  thirty  (30)  per  cent  of  its  total  reserves  in 
Texas  securities,  the  rate  of  said  occupation  tax  shall  be  reduced 
to  two  and  one-half  {2}i)  per  cent,  and  when  such  report  shall 
show  that  such  company  had  invested  on  said  date  as  much  as 
sixty  (60)  per  cent  of  its  total  Texas  reserves  in  Texas  securities 
the  rate  of  such  occupation  tax  shall  be  reduced  to  two  (2)  per 
cent,  and  when  such  report  shall  show  that  as  much  as  seventy- 
five  (75)  per  cent  of  the  total  Texas  reserves  of  such  company 
was  invested  on  said  date  in  Texas  securities,  the  rate  of  such 
occupation  tax  shall  be  reduced  to  one  and  one-half  (Ij^)  per 
cent;  provided,  the  investment  in  Texas  securities  of  seventy- 
five  (75)  per  cent  of  the  Texas  reserves  provided  for  by  this  act 
shall  in  any  event  be  required  of  all  such  companies.  If  upon 
examination  of  any  company,  or  in  any  other  manner  the  com- 
missioner of  insurance  and  banking  shall  be  informed  that  the 
gross  premium  receipts  of  any  year  exceeded  in  amount  those 
shown  by  the  report  thereof,  theretofore  made  as  above  provided, 
it  shall  be  the  duty  of  the  commissioner  to  file  with  the  state 
treasurer  a  supplemental  certificate  showing  the  additional  amount 
of  taxes  due  by  such  company  which  shall  be  paid  by  such  com- 
pany upon  notice  thereof.  It  shall  be  the  duty  of  the  state  treas- 
urer, if,  within  fifteen  days  after  receipt  by  him  of  any  certificate 
or  supplemental  certificate  provided  for  by  this  section,  the  taxes 
due  as  shown  thereby  have  not  been  paid,  to  report  the  facts  to  the 
attorney  general,  who  shall  immediately  institute  suit  in  the  prop- 
er court  of  Travis  County,  to  recover  such  taxes. 

Sec.  6.    That  no  occupation  tax  other  than  herein  imposed  shall 
be  levied  by  the  state  or  any  county,  city  or  town  upon  any  life 


Insurance  Companies,  533 

insurance  company  herein  subject  to  the  occupation  tax  in  pro- 
portion to  its  gross  premium  receipts,  or  its  agents.  The  occu- 
pation tax  imposed  by  this  act  upon  life  insurance  companies  shall 
be  the  sole  occupation  tax  which  any  company  doing  business 
in  this  state  under  the  provisions  of  this  act  shall  be  required 
to  pay  after  this  act  shall  take  effect. 

Sec.  7.  That  each  life  insurance  company  not  organized  under 
the  laws  of  this  state  hereafter  granted  a  certificate  of  authority 
to  transact  business  in  this  state  shall  be  deemed  to  have  accepted 
such  certificate  and  to  transact  such  business  thereunder  subject 
to  the  conditions  and  requirements  that  after  it  shall  cease  to 
transact  new  business  in  this  state  under  a  certificate  of  authority 
and  so  long  as  it  shall  continue  to  collect  renewal  premiums  from 
citizens  of  this  state  it  shall  be  subject  to  the  payment  of  the 
same  occupation  tax  in  proportion  to  its  gross  premiums  during 
any  year,  from  citizens  of  this  state  as  is  or  may  be  imposed  by 
law  on  such  companies  transacting  new  business  within  this 
state  under  certificates  of  authority  during  such  year;  provided, 
that  the  rate  of  such  tax  to  be  so  paid  by  any  such  company  shall 
never  exceed  the  rate  imposed  by  this  act  upon  insurance  com- 
panies transacting  business  in  this  state,  and  each  such  company 
shall  make  the  same  reports  of  its  gross  premium  receipts  for 
each  such  year  and  within  the  same  period  as  is  or  may  be  re- 
quired of  such  companies  holding  "certificates  of  authority;  and 
shall  at  all  times  be  subject  to  examination  by  the  commissioner 
of  insurance  and  banking  or  some  one  selected  by  him  for  that 
purpose,  in  the  same  way  and  to  the  same  extent  as  is  or  may 
be  required  of  companies  transacting  new  business  under  certifi- 
cates of  authority  in  this  state,  the  expenses  of  such  examination 
to  be  paid  by  the  company  examined  and  the  respective  duties  of 
the  commissioner  of  insurance  and  banking  in  certifying  the 
amount  of  such  taxes  and  of  the  state  treasurer  and  attorney 
general  in  their  collection  shall  be  the  same  as  are  or  may  be  pre- 
scribed respecting  taxes  due  from  companies  authorized  to  trans- 
act new  business  within  this  state. 

Sec.  8.  That  any  life  insurance  company  which  has  heretofore 
been,  may  now  be,  or  may  hereafter  be  engaged  in  writing  poli- 
cies of  insurance  upon  the  lives  of  citizens  of  this  state  which  has 
heretofore  ceased  or  may  hereafter  cease  writing  such  policies 
and  which  does  not  now  or  may  not  hereafter  have  a  certificate 


534  Taxation  in  Texas. 

of  authority  to  transact  the  business  of  life  insurance  in  this  state, 
but  which  has  continued  or  may  continue  to  collect  renewal  or 
other  premiums  upon  such  policies,  shall,  before  it  may  again  ob- 
tain a  certificate  of  authority  to  transact  the  business  of  life  insur- 
ance in  this  state,  report  under  oath  to  the  commissioner  of  in- 
surance and  banking  of  this  state,  the  gross  amount  of  premiums 
so  collected  from  citizens  of  this  state  upon  policies  of  insur- 
ance during  each  calendar  year  since  the  end  of  the  period  cov- 
ered by  the  last  preceding  report  by  such  company  of  gross  premi- 
um receipts  upon  which  it  paid  an  occupation  tax,  and  shall  pay 
to  the  state  a  sum  equal  to  the  percentage  of  its  gross  premium 
receipts  for  each  such  year  that  was  required  by  law  to  be  paid 
as  occupation  taxes  by  companies  doing  business  in  this  state  dur- 
ing such  year  or  years  and  upon  the  payment  of  such  sum  and 
securing  a  certificate  of  authority  to  do  business  in  this  state  the 
penalties  provided  for  the  failure  to  pay  such  taxes  and  make 
such  reports  in  the  past  shall  be  remitted.  Acts  31st  Leg.,  pp. 
243,  244,  245. 

§  927.     Insurance  companies. 

The  words  ''gross  amount  of  premiums"  received,  as  used  in 
the  statute,  providing  for  the  levy  and  collection  of  an  occupation 
tax  on  corporations,  etc.,  and  requiring  every  fire  insurance  com- 
pany to  annually  report  "the  gross  amount  of  premiums  received" 
in  the  state  on  property  located  there  and  from  persons  residing 
there,  during  the  preceding  year,  and  imposing  an  annual  tax  on 
the  gross  premium  receipts,  and  declaring  that  the  gross  premium 
receipts  are  the  premium  receipts  reported  to  the  commissioner 
on  the  sworn  statement,  etc.,  include  sums  which  a  fire  insurance 
company  paid  for  re-insurance  without  proof  that  the  companies 
in  which  it  re-insured  had  the  right  to  claim  a  portion  of  the 
premium  at  the  time  the  insurance  was  effected,  and  include  the 
sums  returned  to  policy  holders  on  the  cancellation  of  policies,  as 
provided  therein ;  the  word  "gross"  meaning  whole,  entire,  total, 
without  deduction. 

Where  the  language  of  a  statute  is  plain  and  unambiguous, 
there  is  no  room  for  construction,  and  it  is  not  admissible  to 
resort  to  forced  constructions  to  limit  or  extend  the  meaning  of 
language,  and,  where  words  have  acquired  a  definite  meaning  in 
law,  they  must  be  so  expounded.  Fire  Assn.  of  Philadelphia  v. 
Love,  108  S.  W.  158,  101  Tex.  376.  ' 


Insurance  Companies.  535 

Rev.  St.  1895,  Art.  3084,  Subd.  7,  providing  that  the  annual 
report  of  a  fire  insurance  company  shall  exhibit  the  company's 
income,  stating  the  amount  received  for  premiums,  deducting 
re-insurance,  and  the  amount  received  tor  interest  and  from  all 
other  sources,  in  so  far  as  it  is  in  conflict  with  Laws  1907,  p.  482, 
Chap.  18,  Sec.  8,  providing  that  "every  fire  insurance  company 
*  *  *  at  the  time  of  filing  its  annual  statement  shall  report  *  *  * 
the  gross  amount  of  premiums  received  in  the  state,"  etc.,  is  su- 
perseded by  the  later  act.  Fire  Assn.  of  Philadelphia  v.  Love,  108 
S.  W.  810,  101  Tex.  381. 

§  928.     Gross  receipts. 

Act  May  17,  1907  (Laws  1907,  p.  483,  Chap.  18),  Sec.  8,  im- 
posing a  tax  upon  the  gross  receipts  of  insurance  companies  and 
other  corporations,  provides  that  any  life  insurance  company 
which  shall  comply  with  Act  April  24,  1907  (Laws  1907,  p.  316, 
Chap.  170),  requiring  the  investment  and  deposit  of  75  per  cent 
of  the  reserve  on  policies  of  insurance  upon  the  lives  of  citizens 
of  the  state,  shall  pay  an  annual  tax  of  1  per  cent  upon  its  gross 
receipts  so  long  as  such  investments  and  deposits  are  made.  Sec- 
tion 6  (page  318)  of  the  Act  of  April  24,  1907,  provides  that  an 
insurance  company  of  another  state  wherein  by  law  such  company' 
must  deposit  with  state  officers  securities  covering  the  entire  re- 
serve upon  the  business  transacted  in  such  state  and  all  other 
states  in  such  manner  as  to  secure  equally  all  policy  holders  of 
the  company,  shall  have  two  years  after  the  act  takes  effect  in 
which  to  comply  with  Section  3  (page  317),  thereof.  Section  3 
requires  the  securities  of  an  insurance  company  in  which  is 
vested  75  per  cent  of  its  reserve  fund  for  policies  on  the  lives  of 
persons  living  in  the  state  to  be  deposited  in  the  state  treasury  or 
depository.  Held,  that  a  corporation  of  another  state,  which  in 
compliance  with  the  laws  of  that  state  has  deposited  in  the  proper 
office  securities  covering  the  entire  reserve  upon  business  trans- 
acted in  such  state  and  in  all  other  states,  is  not  therefore  en- 
titled to  the  1  per  cent  tax  rate  on  its  gross  receipts;  the  fact 
that  it  is  exempt  for  two  years  from  complying  with  the  Act  of 
April  24,  1907,  not  being  a  compliance  with  the  act,  so  as  to  en- 
title it  to  the  1  per  cent  tax  rate  on  its  gross  receipts ;  the  fact  that 
it  is  exempt  for  two  years  from  complying  with  the  Act  of  April 
24,  1907,  not  being  a  compliance  with  the  act,  so  as  to  entitle  it  to 
the  1  per  cent  rate. 


536  Taxation  in  Texas. 

Act  May  17,  1907  (Laws  1907,  p.  479,  Chap.  18),  provides  for 
the  levy  of  occupation  taxes  for  the  year  1908  and  annually  there- 
after ;  the  tax  each  year  to  be  levied  on  the  gross  receipts  for  the 
preceding  year.  Such  act  went  into  effect  August  14,  1907. 
Held,  that  the  tax  assessed  for  1908  on  an  insurance  company 
was  not  a  tax  upon  the  gross  receipts  of  the  company  for  1907, 
during  which  year,  up  to  August  14th,  the  rate  prescribed  by  a 
previous  law  prevailed,  but  that  it  was  an  occupation  tax  for 
1908,  merely  based  upon  the  receipts  of  1907,  and  affected  in  no 
way  by  the  tax  payable  in  1907.  Kansas  City  Life  Ins.  Co.  v. 
Love,  109  S.  W.  863,  101  Tex.  531. 


CHAPTER  XLVII. 

IMPROVEMENT  DISTRICTS. 

Sec. 

929.  Law  regulating  the  mode  of  establishing  same  and  levying  and 
collecting  taxes  in  same. 

§  929.  Law  regulating  the  mode  of  establishing  same  and 
levying  and  collecting  taxes  in  same. 

Section  1.  The  commissioners'  court  of  the  several  counties  of 
this  state  may  hereafter  create,  establish  and  define  one  or  more 
improvement  districts  in  their  respective  counties  in  the  manner 
hereinafter  provided,  and  may  or  may  not,  include  within  the 
boundaries  and  limits  of  such  districts,  villages,  towns  and  mu- 
nicipal corporations,  or  any  portion  thereof,  but  no  land  at  the 
same  time  shall  be  included  within  the  boundaries  of  more  than 
one  improvement  district  created  under  the  provisions  of  this 
act. 

Such  improvement  districts,  when  so  created,  established  and 
defined,  may  build  and  construct,  or  cause  to  be  built  and  con- 
structed and  maintained,  levees  or  other  improvements  on  all  riv- 
ers, creeks,  and  streams  within  such  district,  or  which  may  border 
on  the  same,  to  prevent  overflows  thereof,  and  issue  bonds  in  pay- 
ment therefor,  and  the  maintenance  thereof,  and  levy  and  collect 
taxes  for  the  payment  of  said  bonds  and  interest  thereon,  as  here- 
inafter provided;  and  may  acquire  by  grant,  condemnation  or 
otherwise,  such  levees  or  other  improvements  as  may  have  been 
already  constructed  in  such  district. 

Sec.  2.  Upon  the  presentation  of  the  commissioners'  court  of 
any  county  in  the  state  of  a  petition  signed  by  twenty-five  of  the 
resident  property  taxpayers  in  the  proposed  district,  or  in  the 
event  there  are  less  than  seventy-five  resident  property  taxpayers 
in  the  proposed  district,  then  by  one-third  of  such  resident  prop- 
erty taxpayers  of  such  district,  praying  for  the  establishment  of 
an  improvement  district,  the  issuance  of  bonds  and  levy  of  a  tax 
in  payment  thereof,  and  setting  forth  the  necessity  and  feasibil- 
ity and  proposed  boundaries  thereof,  and  designating  the  name 


538  Taxation  in  Texas. 

for  such,  the  name  to  inckide  the  name  of  the  county,  the  said 
commissioners'  court  shall,  if  in  session  when  said  petition  is  pre- 
sented, at  said  session  of  the  court  set  said  petition  down  for  a 
hearing  at  some  regular  or  special  session  of  the  court  called 
for  that  purpose,  not  less  than  thirty  nor  more  than  sixty  days 
from  the  date  of  the  presentation  of  said  petition,  and  shall  order 
the  clerk  of  said  court  to  give  notice  of  the  filing  of  the  said  peti- 
tion, and  of  the  date  and  place  of  hearing,  by  posting  written  or 
printed  notices  thereof  in  five  public  places  in  said  county,  one 
of  which  shall  be  at  the  courthouse  door  of  the  said  county,  and 
four  of  which  shall  be  within  the  limits  of  the  proposed  improve- 
ment district.  Such  notices  shall  be  posted  for  twenty  days  prior 
to  the  time  set  for  such  hearing.  Said  clerk  may  deputize  some 
other  person  to  perform  such  service,  and  the  affidavit  of  such 
clerk  or  his  deputy  that  such  notices  have  been  so  posted  shall 
be  held  conclusive  thereof.  Said  clerk  shall  receive  as  com- 
pensation for  such  service  $1.00  for  each  of  such  notices  and  five 
(5)  cents  per  mile  for  each  mile  necessary  to  be  traveled  in  post- 
ing same.  Should  said  commissioners'  court  not  be  in  session, 
at  the  time  of  the  filing  of  said  petition,  it  may  be  filed  with  the 
county  judge  of  the  county,  who  shall  thereupon  make  and  enter 
an  order  upon  the  minutes  of  said  commissioners'  court,  setting 
said  petition  for  hearing  at  some  regular  or  special  term  of  said 
commissioners'  court,  called  for  that  purpose  not  less  than  thirty 
nor  more  than  sixty  days  from  the  filing  of  said  petition,  and 
shall  order  the  clerk  of  the  said  commissioners'  court  to  give 
said  notice  as  is  herein  provided  for  in  this  section,  and  which 
notice  shall  be  posted  for  the  time  and  as  is  provided  for  in  this 
section. 

Sec.  3.  At  the  time  set  down  for  the  hearing  of  said  petition 
any  person  who  would  be  afifected  by  the  creation  of  said  district 
may  appear  before  the  said  court  and  contest  or  contend  for  the 
creation  of  said  district  and  may  offer  testimony  to  show  that  the 
said  district  is  or  is  not  necessary  and  would  or  would  not  be  of 
public  utility,  and  the  creation  of  said  district  would  or  would 
not  be  feasible  or  practicable.  Said  commissioners'  court  shall 
have  exclusive  or  final  jurisdiction  to  hear  and  determine  all  con- 
tests and  objections  to  the  creation  of  such  districts,  and  all  mat- 
ters pertaining  to  the  same,  and  said  court  shall  have  exclusive 
jurisdiction  over  all  subsequent  proceedings  of  said  district,  when 


Improvement  Districts.  539 

organized,  except  as  herein  provided,  and  may  adjourn  hearings 
on  any  matter  connected  therewith  from  day  to  day ;  and  all  judg- 
ments, orders  or  decrees,  rendered  by  said  court  in  relation  there- 
to, shall  be  final  except  as  hereinafter  provided. 

Sec.  12.  Notice  of  said  election  stating  the  time  and  place  or 
places  of  holding  the  same  shall  be  given  by  the  clerk  of  the 
county  commissioners'  court  by  posting  written  or  printed  notices 
thereof  in  five  public  places  in  such  proposed  improvement  dis- 
trict, and  one  at  the  courthouse  door  of  the  county  in  which  such 
district  is  situated.  Such  notices  shall  contain  the  propositions 
to  be  voted  upon  as  set  forth  in  Section  11  of  this  act,  and  shall 
also  state  the  estimated  cost  of  such  improvement  as  reported  by 
the  engineer,  and  approved  by  the  commissioners'  court,  and  also 
the  amount  of  bonds  proposed  to  be  issued,  together  with  the 
rate  of  interest  the  same  shall  bear,  and  when  the  said  bonds  shall 
be  due,  and  for  a  tax  to  be  levied  and  collected  to  pay  said  bonds 
and  interest  thereon. 

Sec.  13.  The  manner  of  conducting  said  election  shall  be  gov- 
erned by  the  election  law  of  the  state  of  Texas,  except  as  herein 
otherwise  provided.  None  but  resident  property  taxpayers  who 
are  qualified  voters  of  the  said  proposed  improvement  district 
shall  be  entitled  to  vote  at  any  election  on  any  question  submitted 
to  the  voters  thereof  by  the  county  commissioners'  court  at  such 
election.  The  commissioners'  court  shall  name  the  polling  place 
or  places  for  such  election  within  the  proposed  improvement  dis- 
trict and  shall  also  select  and  appoint  judges  and  other  necessary 
officers  of  the  election  and  shall  provide  one  and  one-half  times 
as  many  ballots  for  said  election  as  there  are  qualified  resident 
taxpaying  voters  within  such  district  as  shown  by  the  tax  rolls 
of  the  county.  Such  ballots  shall  have  printed  thereon  these 
words  and  none  others :  "For  the  improvement  district  and  issu- 
ance of  bonds  and  levy  of  taxes  in  payment  therefor."  "Against 
the  improvement  district  and  issuance  of  bonds  and  levy  of  taxes 
in  payment  therefor." 

Sec.  14.  Every  person  who  olTers  to  vote  in  any  election  held 
under  the  provisions  of  this  act  shall  first  take  the  following  oath 
before  the  presiding  judge  of  the  polling  place  where  he  ofifers 
to  vote,  and  the  presiding  judge  is  hereby  authorized  to  admin- 
ister same  :  "I  do  solemnly  swear  (or  affirm)  that  I  am  a  qualified 
voter  of County,  and  that  I  am  a  resident  property 


540  Taxation  in  Texas. 

taxpayer  of  the  proposed  improvement  district  voted  on  in  this 
election,  and  I  have  not  voted  before  at  this  election." 

Sec.  15.  Immediately  after  the  election  the  presiding  judge  at 
each  polling  place  shall  make  returns  of  the  result  in  the  same 
manner  as  provided  for  in  elections  for  state  and  county  officers 
and  return  the  ballot  boxes  to  the  county  clerk,  who  shall  keep 
the  same  in  a  safe  place,  and  deliver  them,  together  with  the  re- 
turns from  the  several  polling  places,  to  the  commissioenrs'  court 
at  its  next  regular  session,  or  special  session  called  for  the  pur- 
pose of  canvassing  the  votes  and  the  county  commissioners'  court 
shall  at  such  session  canvass  the  vote,  and  if  it  be  found  that  a 
two-thirds  of  all  of  the  resident  property  taxpayers  voting  there- 
on shall  have  been  cast  in  favor  of  the  improvements,  and  the 
issuance  of  bonds  and  levy  of  taxes,  then  the  court  shall  declare 
the  result  of  the  election  to  be  in  favor  of  the  said  improvement 
district,  and  bonds  and  taxes,  and  shall  enter  the  same  in  the  min- 
utes of  the  said  court  as  follows : 

"The  County  Commissioners'  Court  of County, 

Texas, Term,  A.  D ,  in  the  matter  of 

the  petition  of and  others,  praying  for 

the  establishment  of  an  improvement  district,  the  issuance  of 
bonds  and  the  levy  of  a  tax  in  payment  thereof,  in  said  petition 

fully  described  and  designated  by  the  name  of 

Improvement  District  "     Be  it  known  that 

at  an  election  held  for  said  purposes  [in]  said  district  on  the 

day  of ,  A.  D ,  a  two-thirds  of  all 

of  the  resident  property  taxpayers  voting  at  said  election,  voted 
in  favor  of  the  creation  of  said  improvement  district  and  the  issu- 
ance of  bonds  and  the  levy  of  taxes.  Now,  therefore,  it  is  con- 
sidered and  ordered  by  the  court  that  said  improvement  district 

be  and  the  same  is  hereby  established  by  the  name  of 

Improvement  District  within  the  following  named  metes  and 
bounds,  towit:     (Giving  boundaries  of  the  district.) 

Sec.  22.  After  the  establishment  of  any  such  improvement  dis- 
trict and  after  the  making  and  filing  of  such  maps  and  profiles 
and  estimates,  as  herein  provided  for,  and  after  said  election  au- 
thorizing the  issuance  of  bonds  and  levy  of  tax,  the  commission- 
ers' court  shall  make  an  order  directing  the  issuance  of  improve- 
ment bonds  for  such  district,  sufficient  to  pay  for  such  proposed 


Improvement  Districts.  541 

improvements,  and  the  maintenance  thereof  for  a  period  of  not 
exceeding  two  years;  provided,  however,  that  said  bonds  shall 
not  exceed  in  the  amount  one-fourth  of  the  assessed  value  of  the 
real  property  of  such  district,  as  shown  by  the  last  annual  assess- 
ment thereof  made  for  the  state  and  county  taxation,  and  shall 
not  exceed  the  estimate  made  by  such  engineer  made  before  the 
election,  and  voted  on  at  the  election  in  this  act  provided  for ;  pro- 
vided, however,  that  if  after  an  election  has  been  held  establish- 
ing the  district,  levying  a  tax  and  issuance  of  bonds,  it  should 
become  necessary  for  said  improvement  district  to  make  further 
improvements,  or  alterations  in  the  improvements  already  consti- 
tuted or  to  repair  or  maintain  the  improvements  so  created  and 
there  shall  be  no  sufficient  funds  in  the  construction  and  main- 
tenance funds,  with  which  such  improvements,  alterations,  repairs 
and  maintenance  may  be  made,  then  the  improvement  commis- 
sioners may  apply  to  the  commissioners'  court  for  an  election  to 
be  ordered  by  said  court  to  issue  additional  bonds,  stating  the 
necessity  therefor  and  the  amount  of  bonds  necessary,  and  the 
character  of  such  improvements,  repairs  and  maintenance,  and  the 
estimated  cost  therefor  as  made  by  such  engineer,  which  shall  ac- 
company said  application  and  upon  the  filing  of  such  application 
the  commissioners'  court  shall  set  same  down  for  hearing  at  some 
future  regular  or  special  session  and  cause  the  county  clerk  to 
give  notice  of  such  hearing,  which  notice  shall  state  the  character 
of  such  improvements,  etc.,  together  with  the  estimated  cost  there- 
for and  the  amount  of  such  bonds  and  the  rate  of  interest  thereon, 
and  the  date  when  due.  Said  written  or  printed  notices  shall  be 
posted  in  the  same  manner  and  places  and  for  the  same  length  of 
time  as  required  by  this  act  for  the  original  petition  for  the  cre- 
ation of  such  district.  If,  upon  said  hearing,  the  court  should  find 
that  the  necessity  for  the  issuance  of  such  additional  bonds  and 
that  the  taxable  values  of  the  real  property  of  the  said  district  as 
shown  by  the  last  annual  assessment  rolls  for  state  and  county 
taxes,  will  admit  of  an  additional  bond  issue,  then  the  court  shall 
order  an  election  within  said  district  for  the  purpose  of  voting 
on  said  proposed  bond  issue  and  the  levy  of  taxes  to  pay  said 
bonds  and  the  interest  thereon.  The  manner  of  holding  such 
election  and  making  returns,  and  the  notices  for  said  election, 
manner  and  time  of  giving  notice  thereof  and  the  qualifications  of 
the  persons  entitled  to  vote  therein,  shall  be  the  same  as,  and  in 


542  Taxation  in  Texas. 

all  things  governed  by  the  provisions  of  this  act  for  the  election 
held  for  the  issuance  of  bonds  and  levy  of  tax  in  the  first  instance, 
and  the  commissioners'  court  shall  meet  and  canvass  the  returns 
of  such  election  as  in  the  said  first  election,  and  if  it  be  found  that 
two-thirds  of  the  resident  property  taxpayers  voting  at  said  elec- 
tion vote  in  favor  of  the  issuance  of  said  additional  bonds  and  the 
levy  of  said  tax  then  the  said  commissioners'  court  shall  enter  an 
order  reciting  the  result  of  said  election,  and  ordering  the  issu- 
ance of  said  additional  bonds  and  issuance  and  sale  and  registra- 
tion of  such  additional  bonds  and  levy  of  said  tax,  and  the  issu- 
ance and  sale  and  registration  of  such  additional  bonds  shall  in  all 
things  be  governed  by  the  provisions  of  this  act  in  regard  to  the 
bonds  first  issued. 

Sec.  23.  All  bonds  issued  under  the  provisions  of  this  act  shall 
be  issued  in  the  name  of  the  improvement  district,  and  shall  be 
signed  by  the  county  judge  and  attested  by  the  clerk  of  the  county 
court  with  the  seal  of  the  county  court  affixed  thereto,  and  such 
bonds  shall  be  issued  in  denorninations  of  not  less  than  $100  nor 
more  than  $1,000  each  and  shall  bear  interest  at  a  rate  of  interest 
not  to  exceed  5  per  cent  per  annum,  payable  semi-annually  at 
such  times  as  may  be  specified  therein.  Such  bonds  and  interest 
shall  be  made  payable  at  the  county  treasurer's  office  of  the  county 
in  which  such  improvement  district  is  located,  or  in  the  city  of 
Austin,  and  no  bond  shall  be  made  payable  for  more  than  forty 
years  after  its  date. 

Sec.  24.  Any  improvement  district  in  the  state  of  Texas  de- 
siring to  issue  bonds  in  accordance  with  this  act  shall,  before 
such  bonds  are  offered  for  sale  forward  to  the  attorney  general 
of  this  state  a  copy  of  the  bond  to  be  issued,  a  certified  copy  of 
the  order  of  the  commissioners'  court  levying  the  tax  to  pay  inter- 
est and  providing  a  sinking  fund  for  the  payment  of  such  bonds, 
and  a  statement  of  the  total  bonded  indebtedness  of  such  im- 
provement district. 

Sec.  Z2.  The  county  commissioners'  court  shall  provide  all 
necessary  additional  books  for  the  use  of  the  assessor  and  collec- 
tion [collector]  of  taxes  and  the  county  clerk  for  such  improve- 
ment district,  and  charge  the  cost  of  same  to  the  said  district. 
It  shall  be  the  duty  of  the  county  tax  assessor,  when  ordered  to 
do  so  by  the  commissioners'  court,  to  assess  all  property  within 
such  improvement  district  and  list  the  same  for  taxation  in  the 


Improvement  Districts.  543 

books  or  rolls  furnished  by  the  said  commissioners'  court  for 
that  purpose  and  return  said  books  or  rolls  at  the  same  time  when 
he  returns  the  other  books  or  rolls  of  the  state  and  county  taxes 
for  correction  and  approval ;  if  the  said  commissioners'  court  shall 
find  said  books  or  rolls  correct,  they  shall  approve  the  same  and 
order  the  county  clerk  to  issue  a  warrant  against  the  county  treas- 
urer in  favor  of  said  tax  assessor  to  be  paid  from  the  funds  of 
said  improvement  district.  The  tax  assessor  shall  receive  for  his 
services  such  compensation  as  the  said  county  commissioners' 
court  shall  deem  proper  to  compensate  him  for  the  amount  of 
work  done,  provided  that  the  said  county  assessor  shall  in  no 
event  be  allowed  less  than  what  he  is  now  allowed  by  law  for  like 
services.  Should  the  tax  assessor  fail  or  refuse  to  comply  with 
the  orders  of  the  commissioners'  court  requiring  him  to  assess 
and  list  for  taxation  all  property  in  such  improvement  district 
as  herein  provided,  he  shall  be  suspended  from  the  further  dis- 
charge of  his  duty  by  the  commissioners'  court  of  his  county,  and 
he  shall  be  removed  from  office  in  the  mode  prescribed  by  law 
for  the  removal  of  county  officers. 

Sec.  33.  The  tax  collector  of  the  county  shall  be  charged  by 
the  county  commissioners'  court  with  the  assessment  rolls  of  the 
improvement  district  and  he  shall  be  allowed  for  such  compensa- 
tion for  the  collections  of  such  taxes  as  he  is  now  allowed  for  the 
collection  of  other  taxes.  The  county  commissioners'  court  shall 
require  the  tax  collector  of  the  county  to  give  an  additional  bond 
of  security  in  such  sum  as  they  may  deem  proper  and  safe  to 
secure  the  collection  of  said  taxes,  and  should  any  collector  of 
taxes  fail  or  refuse  to  give  such  additional  bond  or  surety  as  here- 
in provided  when  required  by  the  commissioners'  court  within 
the  time  prescribed  by  law  for  such  purposes,  he  shall  be  sus- 
pended from  office  by  the  commissioners'  court  of  his  county,  and 
immediately  thereafter  be  removed  from  office  in  the  mode  pre- 
scribed by  law. 

Sec.  34.  It  shall  be  the  duty  of  the  tax  collector  to  make  a  cer- 
tified list  of  all  delinquent  property,  upon  which  the  improvement 
taxes  have  not  been  paid,  and  return  the  same  to  the  county  com- 
missioners' court,  and  said  court  shall  proceed  to  have  said  taxes 
collected  by  the  sale  by  the  collector,  or  by  suit,  in  the  same  man- 
ner as  now  provided  for  the  collection  of  delinquent  state  and 


544  Taxation  in  Texas. 

county  taxes,  and  at  any  sale  of  such  property  for  such  delinquent 
improvement  taxes,  the  improvement  commissioners  may  become 
the  purchasers  of  the  same  for  the  benefit  of  the  improvement 
district. 

Sec.  36.  All  taxes  levied  or  authorized  to  be  levied  by  this  act 
shall  be  payable  and  shall  mature  and  become  delinquent  as  is  pro- 
vided by  the  laws  of  this  state  for  state  and  county  taxes  and 
upon  the  failure  to  pay  such  taxes  when  due,  the  same  penalties 
shall  accrue  and  be  collected  as  provided  by  the  laws  of  the  state 
of  Texas  for  the  non-payment  of  state  and  county  taxes.  All 
taxes  shall  be  a  lien  upon  the  property  for  which  said  property  is 
assessed.  In  the  assessment  and  collection  of  the  taxes  levied  or 
authorized  to  be  levied  by  this  act,  the  assessor  and  collector  of 
taxes  shall,  respectively,  have  the  same  powers  and  shall  be  gov- 
erned by  the  same  rules  and  regulations  as  provided  by  the  laws 
of  the  state  of  Texas  for  the  assessment  and  collection  of  state 
and  county  taxes,  unless  herein  otherwise  provided.  Acts  31st 
Leg.,  pp.  140  to  151. 


CHAPTER  XLVIII. 

DRAINAGE  TAX. 

Sec. 

930.  Acts  of  31st  Legislature,  showing  mode  of  levying  and  collecting. 

§  930.    Acts  of  31st  legislature  showing  mode  of  levying  and 
collecting. 

Section  1.  That  Sections  Nos.  2,  11,  12,  13,  16,  17,  22,  23,  29, 
30,  35,  41  and  44,  of  Chapter  XL  of  the  General  Laws  of  Texas, 
enacted  by  the  Thirtieth  Legislature  of  the  State  of  Texas,  being 
an  act  entitled,  "An  act  to  authorize  the  commissioners'  courts  of 
the  several  counties  of  Texas  to  create  and  establish  drainage 
districts,  to  construct  canals,  drains  and  ditches,  to  make  levees, 
improve  streams  and  water  courses  and  make  other  improvements 
for  the  purpose  of  drainage;  to  order  and  hold  elections  for  the 
purpose  of  voting  on  drainage  propositions,  and  authorizing  the 
issuance  of  bonds  and  levy  of  tax,  and  to  issue  bonds  in  payment 
for  such  drainage  improvements  and  the  maintenance  thereof, 
and  to  levy  and  collect  taxes  for  the  payment  of  such  bonds,  to 
appoint  drainage  commissioners  and  all  other  necessary  officers 
of  such  drainage  districts  for  the  purpose  of  carrying  into  effect 
the  provisions  of  this  act;  granting  the' right  of  eminent  domain 
to  such  drainage  districts,  and  authorizing  the  drainage  commis- 
sioners to  acquire  by  purchase,  gift  or  grant,  for  such  district, 
title  to  any  right  of  way  and  other  property,  and  generally  au- 
thorizing the  county  commissioners'  court  and  the  drainage  com- 
missioners to  do  all  things  necessary  for  the  establishing  and 
maintenance  of  such  districts  according  to  the  provisions  of  this 
act;  repealing  all  laws  or  parts  of  laws  in  conflict  herewith  and 
declaring  an  emergency,"  be  and  the  same  are  hereby  amended  so 
as  to  read  as  follows,  to  wit: 

Sec.  2.  Upon  the  presentation  to  the  county  commissioners' 
court  of  any  county  in  this  state  of  a  petition  (accompanied  by 
the  deposit  provided  for  in  Section  29  of  this  act),  signed  by 
twenty-five  of  the  freehold  resident  taxpayers,  or  in  the  event 
there  are  less  than  seventy-five  freehold  resident  citizen  taxpayers 
35 


546  Taxation  in  Texas. 

in  the  proposed  district,  then  by  one-third  of  such  freehold  resi- 
dent citizen  taxpayers  of  any  proposed  drainage  district,  whose 
lands  may  be  affected  thereby,  praying  for  the  establishing  of  a 
drainage  district,  and  setting  forth  the  necessity,  public  utility 
and  feasibility  and  proposed  boundaries  thereof,  and  designating 
a  name  for  such  drainage  district,  which  name  shall  include  the 
name  of  the  county,  the  said  commissioners'  court  shall  at  the 
same  session  when  said  petition  is  presented,  set  said  petition 
down  for  hearing  at  some  regular  or  special  session  of  said  court, 
called  for  the  purpose,  not  less  than  thirty  nor  more  than  sixty 
days  from  the  presentation  of  said  petition,  and  shall  order  the 
clerk  of  said  court  to  give  notice  of  the  date  and  place  of  said 
hearing  by  posting  a  copy  of  said  petition,  and  the  order  of  the 
court  thereon,  in  five  public  places  in  said  county,  one  of  which 
shall  be  at  the  court  house  door  of  said  county,  and  four  of  which 
shall  be  within  the  limits  of  said  proposed  drainage  district.  The 
said  clerk  shall  receive  as  compensation  for  such  service  one  dol- 
lar for  each  such  notice  and  five  cents  per  mile  for  each  mile  nec- 
essarily traveled  in  posting  such  notices.  Such  notices  shall  be 
posted  for  twenty  days  prior  to  the  date  of  said  public  hearing. 
Provided,  however,  that  in  all  cases  wherein  drainage  districts 
have  heretofore  been  established,  or  wherein  a  hearing  has  been 
heretofore  had  on  the  petition  and  action  thereon  has  been  taken 
by  the  county  commissioners'  court,  or  wherein  a  public  hearing 
is  now  pending  upon  a  petition  for  a  drainage  district,  and  the 
notices  thereof  and  therefor  have  been  so  posted  for  twenty  days, 
in  either  or  all  of  such  cases,  the  notices  for  such  public  hear- 
ing as  well  as  the  notices  for  the  hearing  upon  the  engineer's  re- 
port provided  for  in  Section  10  of  this  law,  shall  be  and  they  are 
hereby  held,  deemed  and  declared  to  be  and  to  have  been  due  and 
legal  and  valid  notices  of  such  public  hearing  or  hearings  under 
the  full  meaning,  intent  and  purpose  of  this  law. 

Sec.  11.  If  there  should  be  no  objection  to  said  report,  or  if 
there  should  be  objection  thereto,  and  the  court  should  find  that 
the  objections  are  not  well  taken,  the  report  shall  be  approved, 
and  the  fact  of  such  approval  entered  of  record  on  the  minutes  of 
said  court ;  but  the  commissioners'  court  shall  not  be  confined  to 
the  number  of  drains,  ditches,  canals  or  levees  or  to  the  initial 
point  or  outlets  of  same,  as  located  and  shown  by  said  report  of 


Drainage  Tax.  547 

the  engineer,  and  may  change  the  location  of  any  of  said  improve- 
ments, or  may  add  to  the  number  of  same  or  reduce  the  number 
of  same  and  order  the  engineer  to  locate  any  additional  canals, 
drains,  ditches  or  levees,  which  levees  may  be  constructed  for  the 
purpose  of  conducting  waters  from  the  lands  of  said  district,  or 
to  prevent  the  overflow  of  waters  from  streams  or  otherwise  onto 
the  lands  of  said  district  proposed  to  be  drained,  or  otherwise  in 
aid  of  said  purpose,  as  directed  by  the  court,  and  the  commis- 
sioners' court,  if  it  deem  it  necessary,  may  refer  the  entire  report 
back  to  the  engineer  for  a  compliance  with  the  orders  of  the 
court  and  require  a  further  report,  provided,  that  notices  shall  be 
given  as  provided  in  Section  10  of  this  law,  and  shall  state  that 
the  public  hearing  shall  be  upon  such  report  of  the  engineer  and 
also  upon  any  changes  or  modifications  that  may  be  made  by  the 
county  commissioners'  court.  Provided,  further,  that  in  all  such 
public  hearings  heretofore  had  under  said  Sections  10  and  11  of 
this  law,  wherein  twenty  days  or  more  notice  was  given,  such 
notices  and  hearings  shall  be,  and  the  same  are  hereby  held, 
deemed  and  declared  to  be  and  to  have  been  legal,  regular  and 
valid  notices  and  hearings  in  all  respects  under  the  full  intent, 
meaning  and  purpose  of  this  law. 

Sec.  12.  After  the  approval  of  the  report  of  the  engineer  as 
presented,  or  as  modified  by  the  county  commissioners'  court,  as 
provided  for  in  the  preceding  section  of  this  act,  the  county  com- 
missioners' court  shall  order  an  election  to  be  held  within  such 
proposed  drainage  district  at  the  earliest  possible  legal  time,  at 
which  election  there  shall  be  submitted  the  following  propositions, 
and  none  other:  "For  the  drainage  district  and  the  issuance  of 
bonds  and  levy  of  tax  in  payment  therefor."  "Against  the  drain- 
age district  and  the  issuance  of  bonds  and  levy  of  tax  in  payment 
therefor." 

Sec.  13.  Notice  of  such  election,  reciting  the  establishment  of 
the  drainage  district,  stating  the  amount  of  bonds,  which  shall  not 
exceed  the  engineer's  estimate  and  the  cost  of  any  additional  work 
which  may  become  necessary  by  any  change  or  modification  made 
by  the  commissioners'  court  as  provided  for  in  Section  11  of  this 
act,  stating  the  time  and  place  or  places  of  holding  the  election, 
shall  be  given  by  the  county  clerk  by  posting  notices  thereof  in 
four  public  places  in  such  proposed  drainage  district  and  one  at 
the  courthouse  door  of  the  county  in  which  such  district  is  situ- 


548  Taxation  in  Texas. 

ated.  Such  notices  shall  be  posted  for  twenty  days  previous  to  the 
date  of  the  election,  and  shall  contain  the  proposition  to  be  voted 
upon  as  set  forth  in  Section  12  of  this  act,  and  shall  also  specify 
the  purposes  for  which  said  bonds  are  to  be  issued.  Provided 
that  the  said  notices  of  election  in  all  drainage  districts  wherein 
such  elections  have  heretofore  been  held  or  are  now  pending,  and 
wherein  twenty  days  notice  was  had,  shall  be  and  the  same  are 
hereby  held,  deemed  and  declared  to  be  and  to  have  been  legal 
and  valid  notices  of  such  elections,  under  the  full  meaning,  intent 
and  purpose  of  this  law. 

Sec.  16.  Immediately  after  the  election  the  presiding  judge 
at  each  polling  place  shall  make  return  of  the  result  in  the  same 
manner  as  provided  for  in  general  elections  for  state  and  county 
officers,  and  return  the  ballot  boxes  to  the  county  clerk  who  shall 
keep  same  in  a  safe  place  and  deliver  them  together  with  the 
returns  from  the  several  polling  places  to  the  commissioners'  court 
at  its  next  regular  session  or  special  session  called  for  the  purpose 
of  canvassing  the  vote,  and  the  county  commissioners'  court  shall 
at  such  session  canvass  the  vote,  and  if  it  be  found  that  two-thirds 
majority  of  the  resident  property  taxpayers  voting  thereon  shall 
have  been  cast  in  favor  of  the  drainage  district  and  the  issuance  of 
bonds  and  levy  of  tax,  then  the  court  shall  declare  the  result  of 
said  election  to  be  in  favor  of  said  drainage  district,  the  levy  of 
tax,  issuance  of  bonds,  and  shall  enter  the  same  in  the  minutes  of 
the  court  substantially  as  follows : 

"In  the  matter  of  the  petition  of and others, 

praying  for  the  establishment  of  a  drainage  district  in  said  peti- 
tion described  and  designated  as   County  Drainage 

District  No ,  be  it  known  that  an  election  called  for  that 

purpose  in  said  district  held  on  the day  of 

A.  D.  19. . . .,  a  two-thirds  majority  of  the  resident  property  tax- 
payers voting  thereon,  voted  in  favor  of  the  creation  of  said 
drainage  district,  and  the  issuance  of  bonds  and  the  levy  of  a  tax, 
now,  therefore,  it  is  considered  and  ordered  by  the  court  that  said 
drainage  district  be,  and  the  same  is  hereby  established  by  the 

name  of County  Drainage  District  No within 

the  following  metes  and  bounds,"  which  field  notes  shall  be  copied 
into  the  record. 

All  drainage  districts  hereafter  created  shall  bear  the  name  of 
the  county  in  which  they  may  be  located,  as  a  part  of  their  names, 


Drainage  Tax.  '  549 

and  shall  be  numbered  consecutively  as  created  and  established  by 
order  of  the  commissioners'  court.  Provided,  how^ever,  that  all 
districts  heretofore  established  and  otherwise  named,  but  v^hich 
have  not,  so  far,  issued  bonds,  may  by  an  order  of  the  county  com- 
missioners' court  of  such  county,  have  such  district  or  districts 
renamed  and  numbered  in  accordance  with  the  requirements  of 
this  act. 

Sec.  17.  After  the  establishment  of  any  drainage  district  as 
herein  provided,  the  commissioners'  court  shall  appoint  three 
drainage  commissioners,  all  of  whom  shall  be  residents  of  the  pro- 
posed drainage  district,  who  shall  be  freehold  taxpayers  and  legal 
voters  of  the  county,  and  shall  have  resided  in  such  county  for  at 
least  three  years,  whose  duty,  shall  be  as  hereinafter  provided, 
and  who  shall  each  receive  for  their  services  a  sum  of  not  more 
than  two  dollars  and  fifty  cents  ($2.50)  per  day  for  the  time  ac- 
tually engaged  in  the  work  of  said  district;  provided,  the  com- 
pensation (if  any),  shall  have  been  definitely  fixed  in  the  order 
of  the  court;  and  before  any  amount  shall  be  paid  said  commis- 
sioners, or  either  of  them,  they  shall  make  a  detailed  report  to 
the  commissioners'  court  of  the  time  actually  consumed  in  the 
work  for  said  district,  and  of  the  work  done,  and  such  report  shall 
be  audited  and  approved  by  the  commissioners'  court.  Said 
drainage  commissioners  shall  hold  office  for  the  term  of  two  years 
and  until  their  successors  have  qualified,  unless  sooner  removed 
by  a  majority  vote  of  the  county  commissioners  for  malfeasance 
or  nonfeasance  in  office.  Upon  expiration  of  the  term  of  office 
of  said  drainage  commissioners  or  in  the  case  of  the  resignation 
of  any  such  commissioners  the  commissioners'  court  shall  appoint 
their  successors  by  a  majority  vote ;  provided,  that  after  the  elec- 
tion establishing  a  drainage  district,  if  a  majority  of  the  real 
property  taxpayers  of  such  district  residing  in  such  county,  pre- 
sent a  petition  to  the  county  commissioners'  court,  praying  for 
an  election  in  said  district  for  the  purpose  of  electing  three  drain- 
age commissioners  therefor,  the  county  commissioners'  court  shall 
immediately  order  an  election  to  be  held  in  said  district  for  said 
purpose  at  the  earliest  legal  time,  and  an  election  shall  be  held 
and  the  returns  thereof  made  as  hereinbefore  provided 
for  other  elections,  and  the  same  qualifications  here- 
inbefore provided  for  voting  at  other  elections  shall  apply  in  said 
election.     The  commissioners'  court  shall  canvass  said  returns 


550  Taxation  in  Texas. 

and  declare  the  result  at  their  next  regular  or  special  session; 
and  the  three  persons  receiving  the  highest  number  of  votes  shall 
be  declared  elected.  In  the  event  the  third  highest  vote  be  tied, 
the  commissioners'  court  shall  elect  the  third  drainage  commis- 
sioner from  among  those  receiving  the  third  highest  vote. 

Provided  further,  that  in  districts  wherein  drainage  commis- 
sioners have  been  heretofore  appointed  whenever  a  majority  of 
the  real  property  taxpaying  voters  of  such  district  shall  file  a  pe- 
tition with  the  county  clerk  of  the  county  in  which  such  district 
is  situated  requesting  an  election  for  drainage  commissioners,  the 
commissioners'  court  shall  at  its  next  session,  regular  or  special, 
order  an  election  to  be  held  in  said  district  for  said  purpose  in  ac- 
cordance with  the  provisions  of  this  act. 

Such  commissioners  so  elected  when  duly  qualified  as  required 
by  this  act  shall  be  the  legal  and  rightful  drainage  commissioners 
for  such  district  within  the.  full  meaning,  intent  and  purpose  of 
this  law.  All  drainage  district  commissioners  elected  as  herein 
provided  shall  hold  their  offices  until  the  next  regular  election  for 
state  and  county  officers,  and  shall  then  and  thereafter  be  elected 
every  two  years  at  such  general  election. 

Sec.  22.  After  the  establishment  of  any  such  drainage  district, 
and  after  making  and  filing  of  such  maps,  profiles  and  estimates 
as  provided  for  in  Section  21  of  this  act,  the  commissioners'  court 
shall  make  an  order  directing  the  issuance  of  drainage  bonds  for 
such  district,  sufficient  in  amount  to  pay  for  such  proposed  im- 
provements, together  with  all  necessary,  actual  and  incidental  ex- 
penses connected  therewith,  provided,  however,  that  said  bonds 
shall  not  exceed  in  amount  one-fourth  of  the  assessed  value  of 
the  real  property  in  such  district,  as  shown  by  the  last  annual  as- 
sessment thereof,  made  for  state  and  county  taxation,  nor  exceed- 
ing the  amount  specified  in  said  order  and  notice  of  election. 

Provided,  however,  that  if  after  an  election  has  been  held  es- 
tablishing the  district,  the  tax  authorized  o%  levied,  and  bonds 
authorized  to  be  issued,  or  have  been  issued,  as  provided  in  this 
act,  the  commissioners'  court  shall  consider  it  necessary  to  make 
any  modification  in  the  said  drainage  district  or  in  any  of  the 
improvements  therein,  and  issue  additional  bonds,  upon  the  report 
of  the  engineer  appointed  by  the  drainage  commissioners,  as  au- 
thorized by  this  act,  or  upon  the  report  of  said  drainage  commis- 
sioners, or  upon  its  own  motion,  shall  have  the  right  to  order  a 


Drainage  Tax.  551 

hearing  for  said  purposes,  or  either  or  any  of  them,  and  notice 
thereof  shall  be  given  as  for  original  hearings,  as  in  this  act  pro- 
vided, and  upon  the  hearing  of  said  matters,  or  any  or  either  of 
them,  the  said  commissioners'  court  shall  make  such  orders  as  it 
deems  proper  in  the  premises ;  and  if  such  drainage  district  is 
modified  or  changed,  or  if  the  improvements  therein  proposed  are 
changed  or  altered,  and  if  additional  bonds  are  considered  neces- 
sary, the  said  commissioners'  court  shall  so  find,  and  such  find- 
ings entered  of  record,  and  a  notice  of  an  election  for  such 
changes  in  said  district  and  improvements  and  the  issuance  of 
said  bonds  shall  be  held  within  such  time  and  the  returns  of  elec- 
tions made  as  heretofore  provided  for  in  case  of  an  original  elec- 
tion, and  if  two-thirds  majority  of  the  property  taxpaying  voters 
of  the  district  voting  thereon  in  favor  of  such  change  in  such  dis- 
trict, or  improvements  and  issuance  of  bonds,  the  court  shall 
enter  the  same  of  record  and  order  such  bonds  to  be  issued  as  in 
the  manner  otherwise  provided  in  this  act. 

Sec.  23.  All  bonds  issued  under  the  provisions  of  this  act  shall 
be  issued  in  the  name  of  the  drainage  district,  signed  by  the 
county  judge  and  attested  by  the  derk  of  the  county  court,  with 
the  seal  of  the  county  commissioners'  court  affixed  thereto,  and 
such  bonds  shall  be  issued  in  denominations  of  not  less  than  one 
hundred  nor  more  than  one  thousand  dollars  each,  and  such 
bonds  shall  bear  interest  at  the  rate  not  to  exceed  5  per  cent  per 
annum,  payable  annually  or  semi-annually.  Such  bonds  shall  by 
their  terms,  provide  the  time,  place  or  places,  manner  and 
condition  of  their  payment  and  the  interest  thereon,  as  may 
be  determined  and  ordered  by  the  county  commissioners' 
court,  but  none  of  such  bonds  shall  be  made  payable 
more  than  forty  years  after  the  date  thereof.  Provided, 
however,  in  all  drainage  districts  heretofore  created  and 
which  have  issued  and  registered  bonds  with  the  comptroller 
under  Chapter  40  of  the  Acts  of  the  Thirtieth  Legislature  of 
Texas,  approved  March  23,  1907,  that  all  proceedings  had  and 
done  in  connection  with  and  leading  up  to  the  creation  of  such 
districts  and  the  issuance  of  such  bonds  so  registered  except  such 
bonds  that  were  issued  and  registered  with  the  comptroller  under 
Chapter  40  of  the  Acts  of  the  Thirtieth  Legislature  of  Texas  in 
excess  of  the  estimate  before  the  commissioners'  court,  when  the 
election  was  ordered  and  held,  be  and  the  same  are  hereby  held, 


552  Taxation  in  Texas. 

deemed  and  declared  to  be,  and  to  have  been  regular,  valid  and 
legal  proceedings  under  the  full  intent,  purpose  and  meaning  of 
this  law;  and  all  such  bonds  so  issued  thereunder  are  hereby 
held,  deemed  and  declared  to  be  valid  and  binding  obligations 
upon  such  drainage  districts. 

Sec.  29.  All  expenses,  debts,  and  obligations,  after  the  filing 
of  the  original  petition,  necessarily  incurred  in  connection  with 
the  creation,  establishment  and  maintenance  of  any  drainage  dis- 
trict organized  under  the  provisions  of  this  act  shall  be  paid  out 
of  the  "Construction  and  Maintenance  Fund"  of  such  drainage 
district,  which  fund  shall  consist  of  all  money  received  by  said 
district  from  whatever  source  except  such  portion  of  the  tax  col- 
lection necessary  to  be  applied  to  the  sinking  fund  and  payment 
of  interest  on  the  drainage  bonds.  Provided,  that  should  the 
proposition  of  the  creation  of  such  drainage  district  and  the  issu- 
ance of  bonds  be  defeated,  at  the  election  called  to  vote  upon  the 
same,  then  all  expenses  up  to  and  including  said  election  shall  be 
paid  in  the  following  manner:  When  the  original  petition  pray- 
ing for  the  establishment  of  a  drainage  district  is  filed  with  the 
county  commissioners'  court,  it  shall  be  accompanied  by  two  hun- 
dred dollars  in  cash,  which  shall  be  deposited  with  the  clerk  of 
said  commissioners'  court,  and  by  him  held  until  after  the  result 
of  the  election  for  the  creation  of  said  drainage  district  has  been 
declared  and  entered  of  record  by  the  commissioners'  court,  as 
hereinbefore  provided,  and  should  the  result  of  said  election  be 
in  favor  of  the  establishment  of  said  district,  then  the  said  two 
hundred  dollars  shall  be  by  said  clerk  returned  to  the  signers 
of  said  original  petition  or  their  agent  or  attorney;  but  should 
the  result  of  said  election  be  against  the  establishment  of  said 
drainage  district,  then  th.e  said  clerk  shall  pay  out  of  the  said  two 
hundred  dollars,  upon  vouchers  signed  by  the  county  judge,  all 
costs  and  expenses  pertaining  to  the  said  proposed  drainage  dis- 
trict up  to  and  including  the  said  election,  and  shall  return  the 
balance,  if  any,  of  said  two  hundred  dollars  to  the  signers  of  said 
original  petition  or  their  agent  or  attorney. 

Sec.  30.  Whenever  any  such  district  drainage  bonds  shall 
have  been  voted,  the  commissioners'  court  shall  levy  and  cause 
to  be  assessed  and  collected,  taxes  upon  all  property  within  said 
drainage  district,  whether  real,  personal,  mixed  or  otherwise,  and 
sufficient  in  amount  annually  to  pay  the  interest  on  such  bonds  as 


Drainage  Tax.  553 

it  shall  fall  due,  together  with  an  additional  amount  to  be  annu- 
ally placed  in  a  sinking  fund  sufficient  to  discharge  and  redeem 
said  bonds  at  their  maturity.  If  advisable,  the  sinking  fund  shall, 
from  time  to  time  be  invested  in  such  county,  municipal,  dis- 
trict or  other  bonds  as  shall  be  approved  by  the  attorney  general 
of  the  state  for  the  benefit  of  such  drainage  district.  Provided, 
that  in  the  assessment  and  collection  of  the  taxes  authorized  by 
this  act,  and  in  all  matters  pertaining  thereto  or  connected  there- 
with, said  assessor  and  collector  shall  have  the  same  powers  and 
shall  be  governed  by  the  same  rules,  regulations  and  proceed- 
ings as  are  provided  by  the  laws  of  this  state  for  the  assessment 
and  collection  of  taxes  for  state  and  county  purposes,  unless  oth- 
erwise provided  for  in  this  act.  The  taxes  levied  or  authorized 
to  be  levied  by  this  act,  shall  be  a  lien  upon  the  property  for 
which  said  taxes  are  assessed  and  it  shall  be  the  duty  of  the  com- 
missioners' court,  and  the  said  court  shall  have  authority  to  fix 
and  determine  when  said  taxes  shall  mature,  and  upon  the  fail- 
ure to  pay  said  taxes  when  due  the  penalty  provided  by  the  laws 
of  Texas  for  the  failure  to  pay  state  and  county  taxes  at  maturity 
shall  in  every  respect  apply  to  taxes  herein  authorized  to  be  as- 
sessed and  levied. 

Sec.  35.  The  county  treasurer  shall  be  the  treasurer  for  such 
districts  and  shall  execute  a  good  and  sufficient  bond,  payable 
to  the  drainage  commissioners  of  such  district  in  a  sum  equal 
to  the  amount  of  bonds  issued,  conditioned  for  the  faithful  per- 
formance of  his  duty  as  treasurer  of  such  district,  which  bond 
shall  be  approved  by  the  said  drainage  commissioners  and  the 
treasurer  shall  be  allowed  as  compensation  for  his  services  as 
treasurer,  one-half  of  one  per  cent  upon  all  moneys  by  him  so 
paid  out  upon  orders  of  such  districts.  Provided,  that  the  county 
judge,  county  treasurer,  contractor,  and  all  bonded  officers  of 
such  district  or  districts  may  be  officially  bonded  in  some  surety 
company  approved  by  said  drainage  commissioners. 

Sec.  41.  Contracts  for  making  and  constructing  canals,  drains, 
ditches,  and  levees,  straightening  and  cleaning  water  courses  and 
other  necessary  work  in  connection  with  any  drainage  district, 
shall  be  let  by  the  drainage  commissioners  to  the  lowest  bidder, 
after  giving  notice  by  advertising  the  same  in  one  or  more  news- 
papers o^  general  circulation  in  the  state  of  Texas,  once  a  week 
for  four  consecutive  weeks,  and  by  posting  notices  for  at  least 


554  Taxation  in  Texas. 

twenty  days,  in  five  public  places  in  the  county,  one  of  which  shall 
be  at  the  courthouse  door  and  at  least  two  of  which  shall  be 
within  said  drainage  district,  and  the  contract  for  each  drain, 
canal,  ditch,  or  levee,  may  be  let  separately  or  all  together ;  pro- 
vided, that  all  the  improvements  included  in  the  report  of  the 
drainage  engineer  and  adopted  by  the  county  commissioners' 
court,  as  provided  for  in  Sections  20  and  21  of  this  act,  shall  be 
constructed.    Acts  31st  Leg.,  pp.  23  to  30. 


CHAPTER  XLIX. 

TAX  FOR  CAUSEWAYS. 

Sec. 

931.  Tax  for  causeways, 

§  931.     Tax  for  causeways. 

Section  1.  Whenever  the  county  commissioners  of  any  county 
in  the  state  of  Texas,  having  a  population  in  excess  of  fifty 
thousand  inhabitants,  according  to  the  last  preceding  census  taken 
by  the  United  States,  deem  it  expedient  so  to  do,  they  may  order 
an  election  to  ascertain  the  will  of  the  qualified  voters  of  such 
county  to  determine  the  propriety  of  a  bond  issue  to  provide  for 
the  construction  and  maintenance  of  causeways,  viaducts,  bridges, 
and  approaches  across  any  rivers  and  bottoms  within  the  limits  of 
such  county,  irrespective  of  any  municipal  boundaries. 

Sec.  2.  The  commissioners'  court  of  such  county  shall,  prior 
to  ordering  any  such  election  as  referred  to  in  Section  1  thereof, 
provide  for  preliminary  surveys  and  estimates  for  such  work, 
and  shall  in  the  order  for  such  election  prescribe  the  amount  and 
terms  of  such  bond  issue. 

Sec.  3.  Whenever  the  commissioners'  court  of  such  county 
deem  it  necessary  or  expedient  to  order  such  election,  the  resolu- 
tion therefor  shall  be  recorded  in  the  minutes  of  the  commission- 
ers' court  and  the  resolution  shall  be  submitted  to  the  property- 
owning  qualified  voters  of  said  county,  at  any  regular  or  special 
election  which  may  be  ordered  by  said  court  for  that  purpose,  and 
if  at  such  election  a  majority  of  the  votes  cast  thereon  shall  be 
for  such  resolution,  the  same  shall  be  deemed  to  be  adopted,  but 
if  a  majority  of  the  votes  cast  thereon  at  such  election  shall  be 
against  said  resolution  it  shall  be  deemed  to  be  rejected. 

Said  election  shall  be  governed  in  all  respects  by  the  law  gov- 
erning elections  in  this  state  and  the  returns  shall  be  made  and 
canvassed  in  the  same  manner  and  the  results  declared  by  proc- 
lamation of  the  county  judge  of  said  county,  which  proclamation 
shall  be  posted  in  at  least  three  public  places  in  said  county,  and, 
at  the  option  of  said  county  judge,  published  in  some  newspaper 
in  said  county. 


556  Taxation  in  Texas. 

Sec.  4.  No  person  shall  be  permitted  to  vote  at  any  election 
provided  for  in  the  next  preceding  section  of  this  act,  unless  he  is 
a  property  owner  and  taxpayer,  and  qualified  voter  of  said  coun- 
ty. Those  desiring  to  vote  for  the  resolution  shall  have  written 
or  printed  on  their  tickets  the  words,  "For  the  Resolution  to  Is- 
sue Bonds  to "  (here  insert  purpose  of  the  proposed 

bond  issue  as  set  forth  in  said  resolution),  and  those  desiring  to 
vote  against  the  resolution  shall  have  written  or  printed  on  their 
tickets  the  words,  "Against  the  Resolution  to  Issue  Bonds  to 

"   (here  insert  such  purpose  of  the  proposed  bond 

issue,  as  set  forth  in  said  resolution).  Such  tickets  shall  be  writ- 
ten or  printed  on  plain  white  paper  with  black  ink  or  pencil  and 
shall  contain  no  distinguishing  mark  or  device,  except  as  above 
provided,  and  if  printed,  shall  be  in  type  of  uniform  size  and  face. 

Sec.  5.  If,  at  the  election  herein  provided  for,  a  majority  of 
the  qualified  voters  voting  thereon  at  such  election  shall  vote  in 
favor  of  the  resolution  provided  for  in  Section  3  of  this  act,  and 
after  the  commissioners'  court  has  canvassed  said  vote  and  de- 
clared the  result,  and  after  the  proclamation  of  said  county  judge, 
declaring  the  result,  it  shall  be  the  duty  of  said  court,  under  the 
supervision  and  direction  of  the  comptroller  of  this  state,  to  pre- 
pare and  execute  the  bonds  of  the  county  for  such  sums  as 
may  be  deemed  advisable  by  said  court,  not  exceeding  the  amount 
stipulated  in  said  resolution,  said  bonds  to  bear  not  exceeding 
five  per  cent  interest,  payable  annually,  and  which  shall  be  re- 
deemable in  not  less  than  five  years  and  not  more  than  forty  years 
from  the  date  thereof,  the  time  of  maturity  to  be  expressed  on 
the  face  of  the  bonds,  and  shall  have  such  bonds  registered  or  en- 
rolled as  in  case  of  other  county  bonds,  and  the  same  shall  not 
be  sold  nor  negotiated  at  less  than  their  par  value ;  provided,  that 
in  no  case  shall  said  court  issue  bonds  under  this  act  for  a  greater 
sum  or  amount  than  that  a  levy  for  this  purpose  of  five  cents  on 
the  one  hundred  dollars  property  valuation  of  said  county  will 
yield  sufficient  revenue  to  pay  such  interest,  as  it  accrues,  and  will 
at  the  same  time  create  a  sinking  fund  sufficient  to  pay  the  prin- 
cipal of  such  bonds  at  maturity. 

Sec.  6.  When  the  bonds  of  the  county  are  issued  and  sold 
under  the  provisions  of  this  act,  it  shall  be  the  duty  of  said  com- 
missioners' court  to  levy  an  annual  ad  valorem  tax  on  all  prop- 


Tax  for  Causeways.  557 

erty  of  the  county,  which  tax,  when  collected,  shall  be  used  only 
for  the  purpose  of  paying  interest  on  said  bonds  and  creating  a 
sinking  fund  to  pay  the  principal  of  same. 

Sec.  7.  The  commissioners'  court  of  such  county  is  authorized 
to  contract  with  individuals,  firms  or  corporations  for  the  privi- 
lege of  using  such  causeways,  viaducts,  bridges  and  approaches, 
or  constructing  and  maintaining  and  using  tracks,  telegraph  lines 
or  other  such  privileges  as  said  commissioners  may  deem  expedi- 
ent, but  shall  make  no  exclusive  nor  preferenrial  contracts,  and  be- 
fore executing  any  such  contracts  shall  give  notice  by  posting  at 
the  courthouse  door  and  in  three  other  public  places  in  said  county 
the  full  terms  and  nature  of  such  proposed  contracts  before  exe- 
cution of  same. 

Sec.  8.  Any  revenues  that  may  accrue  from  any  contract  or 
contracts  made  in  accordance  with  the  provisions  of  the  preceding 
section  may  be  appropriated  by  the  commissioners'  court  to  the 
maintenance  and  repair  of  such  structure  or  structures,  and  such 
court  shall  have  the  authority  to  make  adequate  provision  for 
such  maintenance  and  repair  as  in  the  case  of  any  other  structure 
under  its  control.  In  the  event  the  revenues  accruing  from  the 
use  of  any  such  structure  shall  exceed  the  expenditures  for  its 
maintenance  and  repair,  any  such  excess  shall  be  applied  to  the 
road  and  bridge  fund  of  the  county.  Acts  31st  Leg.,  pp.  46 
and  47. 


CHAPTER  L. 

NAVIGATION  DISTRICTS. 

Sec. 

932.  Act  of  the  31st  Legislature  providing  for  navigation  district  and 
prescribing  mode  and  manner  of  collecting  taxes  in  same. 

§  932.  Act  of  the  31st  legislature  providing  for  navigation 
district  and  prescribing  mode  and  manner  of  collect- 
ing taxes  in  same. 

Section  1.  One  or  more  districts  may  hereafter  be  established 
in  the  several  counties  of  this  state  to  be  known  as  navigation 
districts,  in  the  manner  hereinafter  provided,  and  such  districts 
may,  or  may  not,  include  within  their  boundaries  and  limits  vil- 
lages, towns  and  municipal  corporations,  or  any  parts  thereof. 
Such  navigation  districts  when  so  established  may  make  improve- 
ment of  rivers,  bays,  creeks,  streams  and  canals  running  or  flow- 
ing through  such  districts  or  any  part  thereof  and  may  construct 
and  maintain  canals  and  waterways  to  permit  of  navigation  or  in 
aid  thereof,  may  issue  bonds  in  payment  thereof  as  hereinafter 
provided. 

Sec.  2.  Upon  the  presentation  to  the  county  commissioners' 
court  of  any  county  of  this  state  of  a  petition  (accompanied  by 
the  deposit  provided  for  in  Section  22  of  this  act)  signed  by 
twenty-five  of  the  resident  property  taxpayers,  or  in  the  event 
there  are  less  than  seventy-five  resident  property  taxpayers  in  the 
proposed  district,  then  by  one-third  of  such  resident  property 
taxpayers  of  any  proposed  navigation  district,  praying  for  the 
establishment  of  a  navigation  district,  and  setting  forth  the  bound- 
aries of  the  proposed  district  accompanied  by  a  map  thereof,  the 
general  nature  of  the  improvement  or  improvements  proposed, 
and  an  estimate  of  the  probable  cost  thereof,  and  praying  for  the 
issuance  of  bonds  and  levy  of  tax  in  payment  thereof  and  desig- 
nating a  name  for  such  navigation  district,  which  name  shall  in- 
clude the  name  of  the  county,  said  petitioners  shall  make  affidavit 
to  accompany  said  petition  of  their  said  qualification  and 'the  said 
commissioners'  court,  shall,  at  the  same  session  when  said  petition 


Navigation  Districts.  -       559 

is  presented,  set  same  down  for  hearing  at  some  regular  term  of 
said  court,  or  at  some  special  session  of  said  court,  called  for  the 
purpose,  not  less  than  thirty,  nor  more  than  sixty  days  from  the 
presentation  of  said  petition,  and  shall  order  the  clerk  of  said 
court  to  give  notice  of  the  date  and  place  of  said  hearing  by  post- 
ing a  copy  of  said  petition,  and  the  order  of  the  court  thereon, 
in  five  public  places  in  said  county,  one  of  which  shall  be  at  the 
courthouse  door  of  said  county,  and  four  of  which  shall  be  within 
the  limits  of  said  proposed  navigation  district,  which  said  notices 
shall  be  posted  not  less  than  twenty  days  prior  to  the  time  set  for 
the  hearing.  The  said  clerk  shall  receive  as  compensation  for 
such  services,  one  dollar  for  each  such  notice  and  five  cents  per 
mile  for  each  mile  necessarily  traveled  in  posting  such  notices. 

In  the  event  the  boundaries  of  the  proposed  district  shall  in- 
clude a  city  or  cities,  or  a  part  or  parts  thereof,  acting  under 
special  charter  granted  by  the  legislature,  the  hearing  of  said 
petition  hereinafter  provided  for,  shall  be  had  before  the  county 
judge  and  members  of  the  commissioners'  court  and  the  mayor 
and  aldermen  or  commissioners,  as  the  case  may  be,  of  said  city 
or  cities,  and  said  persons  shall  constitute  a  board  to  be  known 
and  designated  as  the  navigation  board,  to  pass  upon  the  petition 
aforesaid.  Each  individual  member  of  the  said  board  shall  be  en- 
titled to  a  vote.  A  majority  in  number  of  the  individuals  com- 
posing said  board  shall  constitute  a  quorum,  and  the  action  of  a 
majority  of  the  quorum  shall  control. 

In  the  event  the  hearing  of  said  petition  shall  be  had  before 
the  navigation  board,  the  commissioners'  court  of  said  county 
shall  set  the  petition  down  for  hearing  not  less  than  thirty,  nor 
more  than  sixty  days  from  the  date  of  the  presentation  of  said 
petition  without  reference  to  any  term  of  the  commissioners' 
court,  but  said  hearing  shall  be  held  at  the  regular  place  of  meet- 
ing of  the  commissioners'  court  and  notice  shall  be  given  of  the 
hearing  in  the  manner  and  for  the  time  as  hereinbefore  provided. 

The  county  clerk  shall  enter  and  record  the  proceedings  of  the 
navigation  board  in  a  record  book  kept  for  this  purpose,  which 
record  shall  be  a  public  archive. 

The  duties  and  powers  herein  conferred  upon  the  county  judge 
and  members  of  the  commissioners'  court  and  upon  the  mayor 
and  aldermen  or  commissioners  of  cities  and  upon  the  county 
clerk  and  other  officers,  are  made  a  part  of  the  legal  duty  of  said 


560  Taxation  in  Texas. 

officials  which  they  shall  render  and  perform  without  additional 
compensation,  unless  otherwise  provided  herein. 

Sec.  3.  Upon  the  day  set  by  said  county  commissioners  for  the 
hearing  of  said  petition,  any  person  who  has  taxable  property 
within  the  proposed  district  or  who  may  be  affected  thereby,  may 
appear  before  the  said  court  or  navigation  board,  as  the  case  may 
be,  and  contest  the  creation  of  said  district,  or  contend  for  the 
creation  of  said  district,  and  may  offer  testimony  in  favor  of  or 
against  the  boundaries  of  the  said  district,  to  show  that  the  pro- 
posed improvement  or  improvements  would  or  would  not  be  of 
any  public  utility  and  would  or  would  not  be  feasible  or  prac- 
ticable and  the  probable  cost  of  such  improvement  or  improve- 
ments, or  as  to  any  other  matter  pertaining  to  the  proposed  dis- 
trict. Said  county  commissioners'  court  or  navigation  board, 
shall  have  exclusive  jurisdiction  to  hear  and  determine  all  con- 
tests and  objections  to  the  creation  of  such  districts,  and  all  mat- 
ters pertaining  to  the  creation  and  establishment  of  the  same 
and  shall  have  exclusive  jurisdiction  in  all  subsequent  proceed- 
ings of  the  district  when  organized,  except  as  hereinafter  pro- 
vided, and  may  adjourn  hearing  on  any  matter  connected  there- 
with from  day  to  day  and  all  judgments  or  decisions  rendered  by 
said  court  or  navigation  board  in  relation  thereto  shall  be  final, 
except  as  herein  otherwise  provided. 

Sec.  4.  If  at  the  hearing  of  said  petition  it  shall  appear  to  the 
commissioners'  court  or  navigation  board  as  the  case  may  be,  that 
the  proposed  improvement  is  feasible  and  practicable,  that  it 
would  be  a  public  benefit  and  a  public  Utility,  and  if  the  court  or 
navigation  board  as  the  case  may  be  shall  approve  the  boundaries 
of  the  proposed  district  as  set  out  in  said  petition,  then  the  court 
or  navigation  board  shall  so  find  and  shall  also  find  the  amount 
of  money  necessary  for  said  improvement  or  improvements  and 
for  all  expenses  incident  thereto,  and  shall  determine  whether  to 
issue  bonds  for  said  full  amount  or  in  the  first  instance  for  a  less 
amount,  and  shall  specify  the  amount  of  bonds  to  issue,  the  length 
of  time  the  bonds  shall  run  and  the  rate  of  interest  said  bonds 
shall  bear  and  cause  its  findings  to  be  recorded  in  the  records  of 
the  commissioners'  court  or  minutes  of  the  navigation  board  as 
the  case  may  be.  If  the  court  or  navigation  board  shall  find  that 
the  proposed  improvement  is   feasible  and  practicable,  that  it 


Navigation  Districts.  561 

would  be  a  public  benefit  and  a  public  utility,  but  does  not  approve 
the  boundaries  of  the  proposed  districts  as  set  forth  in  the  peti- 
tion, the  court  or  navigation  board  shall  so  find  and  shall  also  find 
the  amount  of  money  necessary  for  said  improvement,  or  im- 
provements and  for  all  expenses  incident  thereto  and  shall  de- 
termine whether  to  issue  bonds  for  said  full  amount  or  in  the  first 
instance  for  a  less  amount  and  shall  specify  the  amount  of  bonds 
to  issue,  the  length  of  time  the  bonds  shall  run  and  the  rate  of 
interest  said  bonds  shall  bear  and  cause  its  findings  to  be  entered 
of  record,  together  with  a  map  thereof.  Providing,  however,  that 
before  any  change  is  made  by  said  court  or  navigation  board  as 
the  case  may  be  of  the  boundaries,  notice  and  a  hearing  thereof 
shall  be  given  and  had  as  provided  for  in  Section  2  of  this  act. 
If  the  court  or  navigation  board  shall  find  that  the  proposed  im- 
provement is  not  feasible  or  practicable  or  that  it  would  not  be  a 
public  benefit  or  public  utility  and  that  the  establishment  of  such 
navigation  district  is  therefore  unnecessary,  then  the  court  or 
navigation  board  shall  enter  such  findings  of  record  and  dismiss 
the  petition  at  the  cost  of  petitioners,  but  the  order  dismissing 
said  petition  shall  not  prevent  or  conclude  the  presentation  at  a 
later  date  of  a  similar  petition. 

Sec.  5.  After  the  hearing  upon  the  petition,  as  herein  provided, 
if  the  court  or  navigation  board,  as  the  case  may  be,  shall  find  in 
favor  of  the  petitioners  for  the  establishment  of  a  navigation  dis- 
trict according  to  the  boundaries  as  set  out  in  said  petition,  or  as 
changed  or  modified  as  above  provided  by  the  said  court  or  navi- 
gation board,  the  commissioners'  court  of  said  county  shall  order 
an  election  in  which  order  provision  shall  be  made  for  submitting 
to  the  qualified  property  taxpaying  voters  resident  in  said  dis- 
trict whether  or  not  such  navigation  district  shall  be  created  and 
whether  or  not  a  tax  shall  be  levied  sufficient  to  pay  the  interest 
and  provide  a  sinking  fund  sufficient  to  redeem  said  bonds  at  ma:- 
turity,  said  order  specifying  the  amount  of  bonds  to  be  issued  to- 
gether with  the  length  of  time  the  bonds  shall  run  and  the  rate  of 
interest  said  bonds  shall  bear  as  said  matters  have  been  deter- 
mined by  the  commissioners'  court  or  navigation  board  as  the 
case  may  be  under  the  provisions  of  Section  4  of  this  act.  Said 
election  to  be  held  within  such  proposed  navigation  district  at  the 
earliest  legal  time,  at  which  election  there  shall  be  submitted  the 
following  propositions  and  none  other :  "For  the  navigation  dis- 
36 


562  Taxation  in  Texas. 

trict,  and  issuance  of  bonds  and  levy  of  tax  in  payment  thereof." 
"Against  the  navigation  district,  and  issuance  of  bonds  and  levy 
of  tax  in  payment  thereof."  Provided  that  said  bonds  shall  not 
exceed  in  amount  one-fourth  of  the  assessed  valuation  of  the  real 
property  of  such  district  as  made  by  the  last  annual  assessment 
thereof  for  state  and  county  taxation. 

Sec.  6.  Notice  of  such  election  stating  the  time  and  place 
of  holding  the  same,  shall  be  given  by  the  clerk  of  the  county 
court  by  posting  notices  thereof  in  four -public  places  in  such  pro- 
posed navigation  district  and  one  at  the  courthouse  door  of  the 
county  in  which  such  district  is  situated,  for  thirty  days  prior  to 
the  date  set  for  the  election.  Such  notices  shall  contain  the  prop- 
osition to  be  voted  upon  as  set  forth  in  Section  5  of  this  act,  and 
shall  also  specify  the  purpose  for  which  said  bonds  are  to  be 
issued,  and  the  amount  of  said  bonds  and  shall  contain  a  copy  of 
the  order  of  the  court  ordering  the  election. 

Sec.  7.  The  manner  of  conducting  said  election  shall  be  gov- 
erned by  the  election  laws  of  the  state  of  Texas,  except  as  herein 
otherwise  provided.  None  but  resident  property  taxpayers  who 
are  qualified  voters  of  said  proposed  district  shall  be  entitled  to 
vote  at  any  election  on  any  question  submitted  to  the  voters 
thereof  by  the  county  commissioners'  court  at  such  election.  The 
county  commissioners'  court  shall  create  and  define  by  an  order  of 
the  court  the  voting  precincts  in  the  proposed  navigation  district 
and  shall  name  a  polling  place  or  places  within  said  precincts 
taking  into  consideration  the  convenience  of  the  voters  in  the 
proposed  navigation  district,  and  shall  also  select  and  appoint  the 
judges  and  other  necessary  officers  of  the  election,  and  shall  pro- 
vide one  and  one-half  times  as  many  ballots  as  there  are  quali- 
fied resident  property  taxpaying  voters  within  such  navigation 
district.  Said  ballot  shall  have  printed  thereon  the  words  and 
none  others :  "For  the  navigation  district,  and  issuance  of  bonds 
and  levy  of  tax  in  payment  thereof."  "Against  the  navigation 
district,  and  issuance  of  bonds  and  levy  of  tax  in  payment  there- 
of." 

Sec.  8.  Every  person  who  offers  to  vote  in  any  election  held 
under  the  provisions  of  this  act  shall  first  take  the  following  oath 
before  the  presiding  judge  of  the  polling  place  wherein  he  offers 
to  vote,  and  the  presiding  judge  is  hereby  authorized  to  adminis- 
ter same.    "I  do  solemnly  swear  (or  affirm)  that  I  am  a  qualified 


Navigation  Districts.  563 

voter  of County,  and  that  I  am  a  resident  property 

taxpayer  of  the  proposed  navigation  district  voted  on  at  this  elec- 
tion and  I  have  not  voted  before  at  this  election." 

Sec.  9.  Immediately  after  the  election  the  presiding  judge  at 
each  polling  place  shall  make  return  of  the  result  in  the  same 
manner  as  provided  for  in  election  for  state  and  county  officers 
and  return  the  ballot  boxes  to  the  county  clerk,  who  shall  keep 
same  in  a  safe  place  and  dehver  them,  together  with  the  returns 
from  the  several  polling  places  to  the  commissioners'  court  at 
its  next  regular  session  or  special  session  called  for  the  purpose 
of  canvassing  the  vote  and  the  county  commissioners  shall  at  such 
session  canvass  the  vote  and  if  it  be  found  that  a  two-thirds  ma- 
jority of  those  voting  at  such  election  shall  have  been  cast  in  favor 
of  the  navigation  district  and  the  issuance  of  bonds  and  levy  of 
tax,  then  the  court  shall  declare  the  result  of  said  election  to  be 
in  favor  of  said  navigation  district,  and  shall  enter  same  in  the 
minutes  of  the  court  as  follows : 

"Commissioners'  Court  of County,  Texas, 

term,  A.  D ,  in  the  matter  of  petition  of and 

others,  praying  for  the  establishment  of  a  naviga- 
tion district,  and  issuance  of  bonds  and  levy  of  taxes  in  said  pe- 
tition fully  described  and  designated  by  the  name  of 

Navigation  District Be  it  known  that  an  election 

called  for  that  purpose  in  said  district,  held  on  the day 

of ,  A.  D ,  a  two-thirds  majority  of  the  resi- 
dent property  taxpayers  voting  thereon  voted  in  favor  of  the 
creation  of  said  navigation  district,  and  the  issuance  of  bonds 
and  the  levy  of  a  tax.  Now,  therefore,  it  is  considered  and  or- 
dered by  the  court  that  said  navigation  district  be,  and  the  same 

is  hereby  established  by  the  name  of Navigation 

District,  and  that  the  bonds  of  said  district  in  the  amount  of 

dollars  be  issued  and  a  tax  of cents  on  the 

hundred  dollars  of  valuation,  or  so  much  thereof  as  may  be  nec- 
essary, be  levied  upon  all  property  within  said  navigation  district, 
whether  real,  personal,  mixed  or  otherwise,  sufficient  in  amount 
to  pay  the  interest  on  such  bonds  and  provide  a  sinking  fund  suf- 
ficient to  redeem  them  at  maturity  and  that  if  said  tax  shall  at 
any  time  become  insufficient  for  such  purposes  same  shall  be  in- 
creased until  same  is  sufficient.  The  metes  and  bounds  of  said 
district,  being  as  follows,  to-wit : 


564  Taxation  in  Texas. 

Sec.  10.  After  the  establishment  of  any  navigation  district  as 
herein  provided,  the  commissioners'  court  or  navigation  board,  as 
the  case  may  be,  shall  appoint  three  navigation  and  canal  com- 
missioners, all  of  whom  shall  be  residents  of  the  proposed  navi- 
gation district,  who  shall  be  freehold  property  taxpayers  and  legal 
voters  of  the  county,  whose  duties  shall  be  as  hereinafter  pro- 
vided, and  who  shall  each  receive  for  their  services  such  compen- 
sation as  may  be  fixed  by  the  commissioners'  court  and  made  of 
record.  Said  navigation  and  canal  commissioners  shall  hold  office 
for  the  term  of  two  years  and  until  their  successors  have  quali- 
fied unless  sooner  removed  by  a  majority  vote  of  the  county  com- 
missioners or  navigation  board  as  the  case  may  be,  for  mal- 
feasance or  nonfeasance  in  office.  Upon  the  expiration  of  the 
term  of  office  of  said  navigation  and  canal  commissioners  the 
commissioners'  court  or  navigation  board  as  the  case  may  be, 
shall  appoint  their  successors  by  a  majority  vote.  Should  any 
vacancy  occur  through  the  death  or  resignation  or  otherwise  of 
any  commissioner  the  same  shall  be  filled  by  the  commissioners' 
court  or  the  navigation  board  as  the  case  may  be. 

Sec.  11.  Before  entering  upon  their  duties  all  navigation  and 
canal  commissioners  shall  take  and  subscribe  before  the  county 
judge  an  oath  to  faithfully  discharge  the  duties  of  their  office 
without  favor  or  partiality,  and  to  render  a  true  account  of  their 
doings  to  the  court  or  navigation  board  by  which  they  are  ap- 
pointed whenever  required  to  do  so,  which  oath  shall  be  filed  by 
the  county  clerk  and  preserved  as  a  part  of  the  records  of  said 
navigation  district. 

Sec.  12.  Before  entering  upon  their  duties  each  of  the  navi- 
gation and  canal  commissioners  shall  make  and  enter  into  a  good 
and  sufficient  bond  in  the  sum  of  $1,000  payable  to  the  county 
judge  for  the  use  and  benefit  of  said  navigation  district  and  con- 
ditioned upon  the  faithful  performance  of  their  duties. 

Sec.  13.  The  navigation  and  canal  commissioners  shall  organ- 
ize by  electing  one  of  their  number  chairman  and  one  secretary 
and  two  of  the  commissioners  shall  constitute  a  quorum  and  a 
concurrence  of  two  shall  be  sufficient  in  all  matters  pertaining  to 
the  business  of  said  district. 

Sec.  14.  The  navigation  and  canal  commissioners  shall  have 
authority  to  employ  a  competent  engineer  whose  term  of  office 
shall  be  at  the  will  of  the  navigation  and  canal  commissioners  and 


Navigation  Districts.  565 

who  shall  receive  such  compensation  as  may  be  determined  by  the 
navigation  and  canal  commissioners.  It  shall  be  the  duty  of  the 
engineer  to  make  all  necessary  surveys,  examinations,  investiga- 
tions, maps,  plans  and  drawings  with  reference  to  the  proposed 
improvements ;  he  shall  make  estimate  or  estimates  of  the  cost  of 
same,  shall  supervise  the  work  of  improvement  and  shall  do  and 
perform  all  such  duties  as  may  be  required  of  him  by  the  navi- 
gation and  canal  commissioners.  Provided,  that  if  the  river, 
creek,  stream,  bay,  canal,  or  waterway  to  be  improved  is  navi- 
gable or  the  improvement  proposed  be  of  such  nature  as  requires 
the  permission  or  consent  of  the  Government  of  the  United  States 
or  any  department  or  officer  of  the  Government  of  the  United 
States,  the  navigation  and  canal  commissioners  shall  be  author- 
ized to  obtain  the  required  permission  or  consent  of  the  Gov- 
ernment of  the  United  States  or  any  proper  office  or  department 
thereof;  and  in  lieu  of  the  employment  of  an  engineer  as  herein 
provided  or  in  addition  thereto,  the  navigation  and  canal  com- 
missioners shall  have  power  to  adopt  any  survey  of  the  river, 
creek,  canal,  stream,  bay,  or  waterway  theretofore  made  by  the 
Government  of  the  United  States  or  any  department  thereof  and 
to  arrange  for  surveys,  examinations  and  investigations  of  the 
proposed  improvement,  and  for  supervision  of  the  work  of  im- 
provement by  the  Government  of  the  United  States  or  the  proper 
department  or  officer  thereof ;  provided  that  said  navigation  and 
canal  commissioners  shall  have  full  power  and  authority  to  co- 
operate and  act  with  the  Government  of  the  United  States  or  any 
officer  or  department  thereof,  in  any  and  all  matters  pertaining 
to  or  relating  to  the  construction  and  maintenance  of  said  canals 
and  the  improvement  and  navigation  of  all  such  navigable  rivers, 
bays,  creeks,  streams,  canals,  and  water  ways,  whether  by  survey, 
work  or  expenditure  of  money  made  or  to  be  made  either  by  said 
navigation  and  canal  commissioners  or  by  said  Government  of  the 
United  States  or  any  proper  officer  or  department  thereof,  or  by 
both,  and  to  the  end  that  the  said  Government  of  the  United 
States  may  aid  in  all  such  matters,  the  said  commissioners  shall 
have  authority  to  agree  and  consent  to  the  said  Government  of 
the  United  States,  entering  upon  and  taking  management  and 
control  of  said  work,  in  so  far  as  it  may  be  necessary  or  permis- 
sible under  the  laws  of  the  United  States  and  the  regulations  and 
orders  of  any  department  thereof. 


566  Taxation  in  Texas. 

Sec.  15.  When  the  said  navigation  and  canal  commissioners 
shall  have  determined  the  cost  of  the  proposed  improvement  or 
improvements,  all  of  the  expenses  incident  thereto  and  cost  of 
maintenance  thereof,  the  said  navigation  and  canal  commission- 
ers shall  certify  to  the  commissioners'  court  of  the  county  in 
which  such  district  is  situated,  the  amount  of  bonds  necessary  to 
be  issued,  and  thereupon  the  said  court  at  a  regular  or  special 
meeting  shall  make  an  order  directing  the  issuance  of  naviga- 
tion bonds  for  such  navigation  district  in  the  amount  so  certified ; 
provided  that  the  amount  of  bonds  shall  not  exceed  the  amount 
authorized  by  the  election  theretofore  held.  In  the'event  the  pro- 
ceeds of  bonds  issued  by  such  navigation  district  should  be  in- 
sufficient to  complete  the  proposed  improvement  or  construction, 
or  in  the  event  the  navigation  and  canal  commissioners  shall  de- 
termine to  make  other  and  further  construction  or  improvements 
or  s.hall  require  additional  funds  with  which  to  maintain  the  im- 
provements made,  they  shall  certify  to  the  commissioners'  court 
of  the  county  in  which  such  district  is  situated  the  necessity  for 
an  additional  bond  issue,  stating  the  amount  required  and  the 
purpose  of  the  same ;  the  rate  of  interest  of  said  bonds  and  the 
time  for  which  they  are  to  run,  whereupon  the  corrimissioners' 
court  shall  issue  such  bonds  unless  the  amount  previously  au- 
thorized shall  have  been  exhausted,  in  which  case  the  commis- 
sioners' court  shall  order  an  election  on  the  issuance  of  said  bonds, 
to  be  held  within  such  navigation  district  at  the  earliest  possible 
legal  time,  and  in  the  manner  hereinbefore  provided  for  the  orig- 
inal issue  of  bonds,  at  which  election  there  shall  be  submitted 
the  following  propositions  and  none  other :  "For  the  issuance  of 
bonds  and  levy  of  tax  in  payment  thereof."  "Against  the  issu- 
ance of  bonds  and  levy  of  tax  in  payment  thereof."  Notices  of 
such  election  shall  be  given  as  provided  in  Section  6  of  this  act 
and  the  election  shall  be  held  and  conducted  in  the  manner  pro- 
vided in  Sections  7  and  8  of  this  act.  Only  those  who  are  quali- 
fied property  taxpaying  voters  as  provided  in  this  act,  shall  vote 
at  such  election  and  the  returns  of  such  election  shall  be  canvassed 
as  provided  in  Section  9  of  this  act. 

[Sec]  15a.  If  upon  a  canvass  of  the  vote,  the  commissioners' 
court  shall  determine  that  a  two-thirds  majority  of  the  votes  cast 
at  said  election  shall  have  been  cast  in  favor  of  the  issuance  of 
bonds  and  levy  of  tax  the  said  court  shall  make  an  order  directing 


\  Navigation  Districts.  567 

the  issuance  of  said  bonds,  and  levy  of  tax ;  provided,  however, 
that  the  outstanding  bonds  and  the  additional  bonds  so  ordered 
shall  not  exceed  in  amount  one-fourth  of  the  assessed  value  of 
the  real  property  in  such  district  as  shown  by  the  last  annual 
assessment  thereof  made  for  state  and  county  taxation. 

Sec.  16.  All  bonds  issued  under  the  provisions  of  this  act  shall 
be  issued  in  the  name  of  the  navigation  district,  signed  by  the 
county  judge  and  attested  by  the  clerk  of  the  county  court,  with 
the.  seal  of  the  commissioners'  court  affixed  thereto,  and  such 
bonds  shall  be  issued  in  denominations  of  not  less  than  $100  nor 
more  than  $1,000  each,  and  such  bonds  shall  bear  interest  at  a 
rate  not  to  exceed  five  per  cent  per  annum.  Such  bonds  and  in- 
terest shall  by  their  terms  be  made  payable  at  the  county  treas- 
urer's office  of  the  county  in  which  such  navigation  district  is 
located,  or  elsewhere  as  may  be  fixed  by  said  navigation  and  canal 
commissioners,  and  no  bonds  shall  be  made  payable  more  than 
forty  years  after  date. 

Sec.  17.  Any  navigation  district  in  the  state  of  Texas  desiring 
to  issue  bonds  in  accordance  with  this  act  shall,  before  such  bonds 
are  ofifered  for  sale,  forward  to  the  attorney  general  a  copy  of 
the  bonds  to  be  issued,  a  certified  copy  of  the  order  of  the  com- 
missioners' court  levying  the  tax,  copy  of  the  order  of  the  com- 
missioners' court  levying  the  tax  to  pay  interest  and  provide  a 
sinking  fund,  and  a  statement  of  the  total  bonded  indebtedness 
of  such  navigation  district  as  such  including  the  series  of  bonds 
proposed  and  the  assessed  value  of  property  for  the  purpose  of 
taxation,  as  shown  by  the  last  official  assessment  by  the  county, 
together  with  such  other  information  as  the  attorney  general  may 
require,  whereupon  it  shall  be  the  duty  of  the  attorney  general  to 
carefully  examine  said  bonds  in  connection  with  the  facts  and  the 
constitution  and  laws  on  the  subject  of  the  execution  of  such 
bonds,  and  if  as  the  result  of  such  examination  the  attorney  gen- 
eral shall  find  that  such  bonds  were  issued  in  conformity  with  the 
constitution  and  laws,  and  that  they  are  valid  and  binding  obliga- 
tions upon  such  navigation  district  by  which  they  are  issued,  he 
shall  so  officially  certify. 

Sec.  18.  When  said  bonds  have  been  examined  by  the  attorney 
general  and  his  certificate  issued  to  that  effect  they  shall  be  reg- 
istered by  the  state  comptroller  in  a  book  to  be  kept  for  that  pur- 
pose, and  the  certificate  of  the  attorney  general  to  the  validity  of 


568  Taxation  in  Texas. 

such  bonds  shall  be  preserved  of  record  for  use  in  the  event  of 
litigation.  Such  bonds,  after  being  approved  by  the  attorney  gen- 
eral, and  after  having  been  registered  in  the  comptroller's  office 
as  herein  provided,  shall  thereafter  be  held  in  every  action,  suit 
or  proceeding  in  which  their  validity  is  or  may  be  brought  in 
question,  prima  facie,  valid  and  binding  obligations.  And  in  ev- 
ery action  brought  to  enforce  collection  of  said  bonds  or  interest 
thereon,  the  certificate  of  the  attorney  general  or  a  duly  certified 
copy  thereof  shall  be  admitted  and  received  as  prima  facie  evi- 
dence of  the  validity  of  such  bonds,  together  with  the  coupons 
thereto  attached ;  provided,  that  the  only  defense  that  can  be 
ofifered  against  the  validity  of  said  bonds,  or  coupons  shall  be 
forgery  or  fraud.  But  this  article  shall  not  be  construed  to  give 
validity  to  any  such  bonds  or  coupons  as  may  be  issued  in  excess 
of  the  limit  fixed  by  the  constitution,  or  contrary  to  its  provisions, 
but  all  such  bonds  shall,  to  the  extent  of  such  excess  be  held  void. 

Sec.  19.  Before  issuing  any  bonds  under  the  provisions  of  this 
act  the  county  commissioners'  court  shall  provide  a  well  bound 
book,  in  which  a  record  shall  be  kept  by  the  county  clerk  of  all 
bonds  issued,  with  their  numbers,  amount,  rate  of  interest,  and 
date  of  issue,  when  due,  where  payable  and  amount  received  for 
the  same,  and  the  annual  rate  per  cent  assessment  made  each  year 
to  pay  the  interest  on  said  bonds  and  provide  a  sinking  fund  for 
their  payment.  And  said  book  shall  at  all  times  be  open  to  the 
inspection  of  all  parties  interested  in  said  district,  either  as  tax- 
payers or  bondholders  or  otherwise,  and  upon  the  payment  of 
any  bond  an  entry  thereof  shall  be  made  in  said  book.  The 
county  clerk  shall  receive  for  his  services  in  recording  all  bonds 
and  other  instruments  of  the  navigation  district  the  same  fees  as 
provided  by  law  for  other  like  records. 

Sec.  20.  When  such  bonds  have  been  registered,  as  provided 
for  in  the  preceding  section  of  this  act,  the  chairman  of  the  navi- 
gation and  canal  commissioners  shall  6flFer  for  sale  and  sell  said 
bonds  on  the  best  terms  and  for  the  best  price  possible,  but  none 
of  said  bonds  shall  be  sold  for  less  than  the  face  par  value  thereof 
and  accrued  interest  thereon,  and  as  fast  as  said  bonds  are  sold, 
all  moneys  received  therefor  shall  be  paid  to  the  county  treasurer 
and  shall  by  him  be  placed  to  the  credit  of  such  navigation  dis- 
trict. 


Navigation  Districts.  569 

Sec.  21.  Before  the  said  chairman  of  the  navigation  and  canal 
commissioners  shall  be  authorized  to  sell  any  of  the  navigation 
bonds  he  shall  execute  a  good  and  sufficient  bond,  payable  to  the 
county  judge  or  his  successors  in  office,  to  be  approved  by  the 
county  commissioners'  court  of  said  county  for  an  amount  not 
less  than  the  amount  of  the  bonds  issued,  conditioned  upon  the 
faithful  discharge  of  his  duties. 

Sec.  22.  All  expenses,  of  any  kind,  after  the  filing  of  the  orig- 
inal petition  necessarily  incurred  in  connection  with  the  creation, 
establishment  and  maintenance  of  any  navigation  district  organ- 
ized under  the  provisions  of  this  act  shall  be  paid  out  of  the  "Con- 
struction and  Maintenance  Fund"  of  such  navigation  district, 
which  fund  shall  consist  of  all  moneys  received  from  the  sale  of 
bonds  and  all  other  amounts  received  by  said  district  from  what- 
ever source,  except  the  tax  collections  applied  to  the  sinking  fund 
and  payment  of  interest  on  the  navigation  bonds.  Provided,  that 
should  the  proposition  of  the  creation  of  such  navigation  district 
and  issuance  of  bonds  be  defeated  at  the  election  called  to  vote 
upon  same,  then  all  expenses  up  to  and  including  said  election 
shall  be  paid  in  the  following  manner:  When  the  original  peti- 
tion praying  for  the  establishment  of  a  navigation  district  is  filed 
with  the  county  commissioners'  court  it  shall  be  accompanied  by 
$500  in  cash,  which  shall  be  deposited  with  the  clerk  of  said 
county  commissioners'  court,  and  by  him  held  until  after  the  result 
of  the  election  for  the  creation  of  said  navigation  district  has  been 
declared  and  entered  of  record  by  the  commissioners'  court,  as 
hereinbefore  provided,  and  should  the  result  of  said  election  be 
in  favor  of  the  establishment  of  said  district  then  the  said  $500 
shall  be  by  said  clerk  returned  to  the  signers  of  said  original  pe- 
tition or  their  agent  or  attorney;  but  should  the  result  of  said 
election  be  against  the  establishment  of  said  district,  then  the  said 
clerk  shall  pay  out  of  the  said  $500,  upon  vouchers  signed  by  the 
county  judge,  all  costs  and  expenses  pertaining  to  the  said  pro- 
posed district  up  to  and  including  the  said  election,  and  shall  re- 
turn the  balance,  if  any,  of  said  $500,  to  the  signers  of  said  orig- 
inal petition  or  their  agent  or  attorney. 

Sec.  23.  Whenever  any  such  navigation  district  bonds  shall 
have  been  voted,  the  commissioners'  court  shall  levy  and  cause 
to  be  assessed  and  collected  improvement  taxes  upon  all  property 
within  said  navigation  district,  whether  real,  personal,  mixed  or 


570  Taxation  in  Texas. 

otherwise,  and  sufficient  in  amount  to  pay  the  interest  on  such 
bonds,  together  with  an  additional  amount  to  be  annually  placed 
in  a  sinking  fund  sufficient  to  discharge  and  redeem  said  bonds 
at  their  maturity. 

If  advisable  the  sinking  fund  shall  from  time  to  time  be  in- 
vested by  the  commissioners'  court  of  the  county,  in  such  county, 
municipal,  district  or  other  bonds  as  shall  be  approved  by  the 
attorney  general  of  the  state. 

Sec.  24.  The  county  commissioners'  court  shall  provide  all 
necessary  additional  books  for  the  use  of  the  assessor  and  col- 
lector of  taxes  and  the  county  clerk  for  such  navigation  district, 
and  charge  the  cost  of  same  to  the  said  navigation  district.  It 
shall  be  the  duty  of  the  county  tax  assessor,  when  ordered  to  do 
so  by  the  commissioners'  court,  to  assess  all  property  within  such 
navigation  district  and  list  the  same  for  taxation  in  the  books  or 
rolls  furnished  him  by  said  commissioners'  court  for  that  pur- 
pose, and  return  said  books  or  rolls  at  the  same  time  when  he 
returns  the  other  books  or  rolls  of  the  state  and  county  taxes,  for 
correction  and  approval ;  and  if  the  said  commissioners'  court 
shall  find  said  books  or  rolls  correct,  they  shall  approve  the  same, 
and  in  all  matters  pertaining  to  the  assessment  of  property  for 
taxation  in  said  districts,  the  tax  assessor  and  board  of  equaliza- 
tion of  the  county  in  which  said  district  is  located,  shall  be  au- 
thorized to  act  and  shall  be  governed  by  the  laws  of  Texa^  for 
assessing  and  equalizing  property  for  state  and  county  taxes,  ex- 
cept as  herein  provided.  All  taxes  authorized  to  be  levied  by  this 
act  shall  be  a  lien  upon  the  property  upon  which  said  taxes  are  as- 
sessed and  said  taxes  may  be  paid  and  shall  mature  and  be  paid 
at  the  time  provided  by  the  laws  of  this  state  for  the  payment  of 
state  and  county  taxes  and  all  the  penalties  provided  by  the  laws 
of  this  state  for  the  non-payment  of  state  and  county  taxes  shall 
apply  to  all  taxes  authorized  to  be  levied  by  this  act.  The  tax 
assessor  shall  receive  for  said  services  such  compensation  as  the 
said  navigation  and  canal  commmissioners  shall  deem  proper, 
provided  that  said  county  assessor  shall  in  no  event  be  allowed 
more  than  he  is  now  allowed  by  law  for  the  like  services.  Should 
the  tax  assessor  fail  or  refuse  to  comply  with  the  orders  of  the 
commissioners'  court  requiring  him  to  assess  and  list  for  taxation 
all  the  property  in  such  navigation  districts  as  herein  provided, 


Navigation  Districts.  571 

he  shall  be  suspended  from  the  further  discharge  of  his  duties  by 
the  commisssioners'  court  of  his  county,  and  he  shall  be  removed 
from  office  in  the  mode  prescribed  by  law  for  the  removal  of 
county  officers. 

Sec.  25.  The  tax  collector  of  the  county  shall  be  charged  by  the 
county  commissioners'  court  with  the  assessment  rolls  of  the  nav- 
igation district,  and  he  shall  be  allowed  no  more  compensation  for 
the  collection  of  said  taxes  than  he  is  now  allowed  for  the  col- 
lection of  other  taxes,  same  to  be  fixed  by  the  navigation  and 
canal  commissioners.  The  county  commissioners'  court  shall  re- 
quire the  tax  collector  of  the  county  to  give  an  additional  bond 
or  security  in  such  a  sum  as  they  may  deem  proper  and  safe  to 
secure  the  collection  of  said  taxes,  and  in  all  matters  pertaining 
to  the  collection  of  taxes  levied  under  the  provisions  of  this  act 
the  tax  collector  shall  be  authorized  to  act  and  shall  be  governed 
by  the  laws  of  Texas  for  the  collection  of  state  and  county  taxes 
except  as  herein  provided,  and  suits  may  be  brought  for  the  col- 
lection of  said  taxes  and  the  enforcement  of  the  tax  liens  created 
by  this  act.  Should  any  collector  of  taxes  fail  or  refuse  to  give 
such  additional  bond  or  security  as  herein  provided,  when  re- 
quested by  the  commissioners'  court,  within  the  time  prescribed 
by  law  for  such  purposes,  he  shall  be  suspended  from  office  by 
the  commissioners'  court  of  his  county,  and  immediately  there- 
after be  removed  from  office  in  the  mode  prescribed  by  law. 

Sec.  26.  It  shall  be  the  duty  of  the  tax  collector  to  make  a  cer- 
tified list  of  all  delinquent  property  upon  which  the  navigation  tax 
has  not  been  paid  and  return  the  same  to  the  county  commission- 
ers' court,  which  shall  proceed  to  have  the  same  collected  by  the 
sale  of  such  delinquent  property  in  the  same  manner  both  by  suit 
and  otherwise  as  is  now  provided  for  the  sale  of  property  for  the 
collection  of  state  and  county  taxes,  and  at  the  sale  of  any  prop- 
erty for  any  delinquent  tax  the  navigation  and  canal  commis- 
sioners mdy  become  the  purchasers  of  the  same  for  the  benefit  of 
the  navigation  district.     Acts  3 1st  Leg.,  pp.  32  to  42. 


CHAPTER  LI. 

INHERITANCE  TAX. 

Sec. 

933.  An  Act  to  tax  property  passing  by  will  or  by  descent  or  by  grant 
or  gift;  taking  effect  on  the  death  of  the  grantor  or  donor. 

§  933.  An  act  to  tax  property  passing  by  will  or  by  descent 
or  by  grant  or  gift ;  taking  effect  on  the  death  of  the 
grantor  or  donor. 

Section  1.  All  property  within  the  jurisdiction  of  this  state, 
real  or  personal,  corporeal  or  incorporeal,  and  any  interest  there- 
in, whether  belonging  to  inhabitants  of  this  state  or  not,  which 
shall  pass,  absolutely  or  in  trust,  by  will,  or  by  the  laws  of  de- 
scent of  this  or  any  other  state,  or  by  deed,  grant,  sale  or  gift, 
made  or  intended  to  take  effect  in  possession  or  enjoyment  after 
the  death  of  the  grantor  or  donor,  shall  upon  passing  to  or  for  the 
use  of  any  person  except  the  father,  mother,  husband,  wife  or 
direct  lineal  descendants  of  the  testator,  intestate,  grantor  or 
donor,  or  any  public  corporation  or  charitable,  educational  or  re- 
ligious organization  within  this  state  when  such  bequest,  gift  or 
devise  is  to  be  used  for  charitable,  educational  or  religious  pur- 
poses within  this  state,  be  subject  to  a  tax  for  the  benefit  of  the 
state,  as  follows : 

(1)  If  passing  to  or  for  the  use  of  a  lineal  ascendant  or  a 
brother  or  sister,  or  a  lineal  descendant  of  a  brother  or  sister, 
the  tax  shall  be  two  per  cent  on  any  value  in  excess  of  two  thou- 
sand dollars,  and  not  exceeding  ten  thousand  dollars ;  two  and 
one-half  per  cent  of  any  value  in  excess  of  ten  thousand  dollars, 
and  not  exceeding  twenty-five  thousand  dollars  ;  three  per  cent  on 
any  value  in  excess  of  twenty-five  thousand  dollars,  and  not  ex- 
cieeding  fifty  thousand  dollars ;  three  and  one-half  per  cent  on  any 
value  in  excess  of  fifty  thousand  dollars,  and  not  exceeding  one 
hundred  thousand  dollars ;  four  per  cent  on  any  value  in  excess 
of  one  hundred  thousand  dollars,  and  not  exceeding  five  hundred 
thousand  dollars ;  and  five  per  cent  on  any  value  in  excess  of  five 
hundred  thousand  dollars. 


Inheritance  Tax.  573 

(2)  If  passing  to  or  for  the  use  of  an  uncle  or  aunt,  or  a 
lineal  descendant  of  an  uncle  or  aunt  of  the  decedent,  the  tax 
shall  be  three  per  cent  on  any  value  in  excess  of  one  thousand 
dollars,  and  not  exceeding  ten  thousand  dollars;  four  per  cent 
on  any  value  in  excess  of  ten  thousand  dollars,  and  not  exceeding 
twenty-five  thousand  dollars ;  five  per  cent  on  any  value  in  excess 
of  twenty-five  thousand  dollars,  and  not  exceeding  fifty  thousand 
dollars ;  six  per  cent  on  any  value  in  excess  of  fifty  thousand  dol- 
lars and  not  exceeding  one  hundred  thousand  dollars ;  seven  per 
cent  on  any  value  in  excess  of  one  hundred  thousand  dollars,  and 
not  exceeding  five  hundred  thousand  dollars,  and  eight  per  cent  on 
any  value  in  excess  of  five  hundred  thousand  dollars. 

(3)  If  passing  to  or  for  the  use  of  any  other  person,  natural 
or  artificial,  the  tax  shall  be  four  per  cent  of  any  value  in  excess 
of  five  hundred  dollars,  and  not  exceeding  ten  thousand  dollars ; 
five  and  one-half  per  cent  on  any  value  in  excess  of  ten  thousand 
dollars,  and  not  exceeding  twenty-five  thousand  dollars ;  seven 
per  cent  on  any  value  in  excess  of  twenty-five  thousand  dollars 
and  not  exceeding  fifty  thousand  dollars ;  eight  and  one-half  per 
cent  on  any  value  in  excess  of  fifty  thousand  dollars,  and  not  ex- 
ceeding one  hundred  thousand  dollars ;  ten  per  cent  on  any  value 
in  excess  of  one  hundred  thousand  dollars  and  not  exceeding  five 
hundred  thousand  dollars,  and  twelve  per  cent  on  any  value  in 
excess  of  five  hundred  thousand  dollars. 

Sec.  2.  If  the  property  passing  as  aforesaid  shall  be  divided 
into  two  or  more  estates,  as  an  estate  for  years  or  for  life  and  a 
remainder,  the  tax  shall  be  levied  on  each  estate  or  interest  sep- 
arately according  to  the  value  of  the  same  at  the  death  of  the  de- 
cedent. The  value  of  estates  for  years,  estates  for  life,  remainders 
and  annuities  shall  be  determined  by  the  "Actuaries'  Combined 
Experience  Tables,"  at  4  per  cent  compound  interest. 

Sec.  3.  If  a  testator  bequeaths  or  devises  to  his  executor  or 
trustee,  property  in  lieu  of  the  latter's  commission,  the  value  of 
such  property  in  excess  of  reasonable  compensation,  as  determined 
by  the  county  judge  on  his  own  motion,  or  on  the  application  of 
any  officer  on  behalf  of  the  state,  shall  be  subject  to  taxation 
under  this  act. 

Sec.  4.  Every  executor,  administrator  and  trustees  of  the  es- 
tate of  a  decedent  leaving  property  subject  to  taxation  under  this 
act,  whether  such  property  passes  by  will  or  by  the  laws  of  de- 


574  Taxation  in  Texas. 

scent  or  otherwise,  shall,  within  three  months  after  his  appoint- 
ment, make  and  file  an  inventory  thereof  in  the  county  court  hav- 
ing jurisdiction  of  the  estate  of  the  decedent.  Any  executor,  ad- 
ministrator or  trustee  refusing  or  neglecting  to  comply  with  the 
provisions  of  this  section  shall  be  liable  to  a  penalty  not  exceed- 
ing one  thousand  dollars,  to  be  recovered  in  an  action  brought  in 
behalf  of  the  state  by  the  district  or  county  attorney  upon  notice 
from  the  judge  of  the  county  court. 

Sec.  5.  If  within  three  months  after  the  death  of  a  decedent 
leaving  property  subject  to  taxation  under  this  act  no  application 
for  letters  testamentary  or  of  administration  shall  be  made,  it 
shall  be  the  duty  of  the  county  court  to  appoint  an  administrator. 
It  shall  be  the  duty  of  the  county  attorney  to  report  to  the  judge 
of  the  county  court  all  such  estates,  whether  the  property  subject 
to  taxation  passes  by  will  or  by  laws  of  descent  or  otherwise. 
For  each  decedent's  estate  thus  reported  the  county  attorney  shall 
receive  a  compensation  of  ten  per  cent  of  the  tax  payable,  but  not 
to  exceed  twenty  dollars  in  any  one  estate.  Such  payment  shall 
be  made  by  the  collector  of  taxes,  on  the  certificate  of  the  county 
judge,  out  of  the  taxes  paid  him  on  property  belonging  to  such 
estate.  - 

Sec.  6.  Said  tax  shall  be  assessed  upon  the  actual  or  market 
value  of  the  property.  The  judge  of  the  county  court  having 
jurisdiction  of  the  estate  of  the  decedent  shall,  as  often  as  and 
whenever  occasion  may  require,  appoint  two  competent  disinter- 
ested persons  as  appraisers  to  fix  the  value  of  property  subject  to 
said  tax.  The  appraisers,  being  first  sworn,  shall  forthwith  give 
notice  to  all  persons  known  to  have  a  claim  or  interest  in  the 
property  to  be  appraised,  including  the  executor,  administrator 
or  trustee,  and  the  collector  of  taxes  of  the  county,  of  the  time  and 
place  when  they  will  appraise  the  same.  At  such  time  and  place 
they  shall  appraise  such  property  at  its  actual  or  market  value 
at  the  time  of  the  death  of  the  decedent,  and  shall  thereupon  make 
report  thereof  in  writing  to  said  county  judge,  who  shall  file  such 
report.  Each  appraiser  shall  be  paid,  on  the  certificate  of  the 
county  judge,  two  dollars  for  each  day  employed  in  such  appraisal, 
together  with  his  actual  necessary  expenses  incurred  therein, 
which  payments  shall  be  made  by  the  collector  of  taxes  out  of  any 
moneys  in  his  hands  received  under  this  act;  provided,  however, 
that  upon  the  agreement  of  the  parties  interested  to  dispense  with 


Inheritance  Tax.  575 

the  appointment  of  appraisers  the  county  judge  shall  himself 
appraise  the  property  and  make  and  file  a  report  thereof.  If  the 
same  decedent  shall  leave  property  subject  to  this  tax  to  more 
than  one  person,  a  separate  appraisal  and  report  shall  be  made 
for  the  property  of  each  person. 

Sec.  7 .  Immediately  upon  the  filing  of  the  report  of  the  ap- 
praisement, the  county  judge  shall  calculate  and  determine  the 
amount  of  tax  due  on  such  property  under  this  act,  and  shall  in 
writing  certify  such  amount  to  the  collector  of  taxes,  to  the  exec- 
utor, administrator  or  trustee,  and  to  the  person  to  whom  or  for 
whose  use  the  property  passes.  Said  tax  shall  be  a  lien  upon 
such  property  from  the  death  of  the  decedent  until  paid,  and  shall 
bear  interest  from  such  death  until  paid,  unless  payment  shall  be 
made  within  six  months  after  such  death,  in  which  case  no  inter- 
est shall  be  charged. 

Sec.  8.  If  such  property  be  in  the  form  of  money,  the  executor, 
administrator  or  trustee  shall  deduct  the  amount  of  the  tax  there- 
from before  paying  it  to  the  party  entitled  thereto ;  if  it  be  not  in 
the  form  of  money,  he  shall  withhold  the  property  until  the  pay- 
ment by  such  party  of  the  amount  of  the  tax ;  in  any  case  the 
executor,  administrator  or  trustee  shall  be  liable  for  the  amount 
of  the  tax  and  shall  have  the  right,  in  case  of  neglect  or  refusal 
after  due  notice  of  the  party  entitled  to  the  property  to  pay  such 
amount,  to  sell,  at  public  sale,  after  due  notice  to  such  party,  the 
property,  or  so  much  thereof  as  may  be  necessary.  Out  of  the 
sum  realized  on  such  sale,  the  executor,  administrator  or  trustee 
shall  deduct  the  amount  of  the  tax  and  the  expenses  of  the  sale, 
and  shall  pay  the  balance  to  the  party  entitled  thereto. 

Sec.  9.  Whenever  any  legacy  subject  to  said  tax  shall  be 
charged  upon  or  payable  out  of  real  estate,  the  heir  or  devisee,  be- 
fore paying  the  legacy,  shall  deduct  the  amount  of  the  tax  there- 
from, and  pay  the  amount  so  deducted  to  the  executor,  admin- 
istrator or  trustee;  the  amount  of  the  tax  shall  remain  a  charge 
on  such  real  estate  until  paid,  and  the  payment  thereof  shall  be 
enforced  by  the  executor  or  trustee  in  the  same  manner  as  the 
payment  of  the  legacy  itself  could  be  enforced. 

Sec.  10.  All  taxes  received  under  this  act  by  any  executor, 
administrator  or  trustee,  shall  be  paid  by  him  within  thirty  days 
thereafter  to  the  collector  of  taxes  of  the  county  whose  county 
court  has  jurisdiction  of  the  estate  of  the  decedent.    Upon  such 


576  *  Taxation  in  Texas. 

payment,  the  collector  shall  make  duplicate  receipts  thereof;  he 
shall  deliver  one  to  the  party  making  payment,  the  other  he  shall 
send  to  the  comptroller  of  public  accounts,  who  shall  charge  the 
collector  with  the  amount  thereof,  and  shall  countersign  and  affix 
his  seal  of  office  to  such  receipt  and  transmit  same  to  the  party 
making  payment. 

Sec.  11.  In  case  such  tax  shall  not  be  paid  to  the  collector  of 
taxes  within  six  months  after  the  county  judge  has  notified  the 
amount  thereof  as  hereinbefore  provided,  the  collector  shall  com- 
mence an  action  to  recover  the  amount  of  such  tax  against  the 
executor,  administrator  or  trustee,  and  the  party  to  whom  or  for 
whose  use  the  property  has  passed;  provided,  that  the  county 
judge  may  by  certificate  to  the  collector  extend  such  time  of  pay- 
ment whenever  the  circumstances  of  the  case  require. 

Sec.  12.  The  collector  of  taxes  of  each  county  shall,  on  or 
before  the  fifteenth  day  of  each  month,  pay  to  the  state  treasurer 
all  taxes  received  by  him  under  this  act  before  the  first  day  of  that 
month,  deducting  therefrom  all  lawful  disbursements  made  by  him 
under  this  act,  and  also  his  compensation  at  the  rate  of  one  per 
cent  of  all  taxes  collected  under  this  act. 

Sec.  13.  The  moneys  received  by  the  state  treasurer  under  this 
act  shall  be  deposited  in  the  state  treasury  to  the  credit  of  the 
fund  now  there  existing  and  known  as  the  general  revenue  fund. 

Sec.  14.  Whenever  any  debts  shall  be  proven  against  the  estate 
of  a  decedent  after  the  distribution  of  property  on  which  the  tax 
has  been  paid,  and  a  refund  is  made  by  the  distributee,  a  due  pro- 
portion of  the  tax  so  paid  shall  be  repaid  to  him  by  the  executor, 
administrator  or  trustee,  if  still  in  his  hands,  or  by  the  collector  of 
taxes  if  it  has  been  paid  to  him.  The  collector  shall  pay  such  sums 
upon  the  order  of  the  county  judge  out  of  any  money  in  his  pos- 
session under  this  act ;  and  the  comptroller  of  public  accounts  shall 
credit  the  collector  with  all  sums  so  paid  out  by  him. 

Sec.  15.  No  final  account  of  an  executor,  administrator  or 
trustee  shall  be  allowed  by  the  county  judge  unless  such  account 
shows,  and  said  judge  finds,  that  all  taxes  imposed  under  this 
act  on  any  property  or  interest  passing  through  his  hands  as  such 
have  been  paid ;  and  the  receipt  of  the  collector  of  taxes  for  such 
taxes  shall  be  the  proper  voucher  for  such  payment. 

Sec.  16.  If  for  any  reason  administration  of  the  estate  of  a 
decedent  leaving  property  subject  to  taxation  under  this  act,  shall 


Inheritance  Tax.  577 

not  be  necessary  in  this  state,  except  in  order  to  carry  out  the 
provisions  of  this  .act,  it  shall  be  in  the  discretion  of  the  county 
judge  upon  the  filing  of  a  satisfactory  inventory  of  the  taxable 
property  by  the  trustee  or  owner,  to  dispense  with  the  appoint- 
ment of  an  administrator.  Upon  the  filing  of  such  inventory,  the 
appraisement  and  other  proceedings  required  by  this  act  shall  be 
had  as  in  other  cases.    Acts  30th  Leg.,  pp.  496  to  500. 


37 


CHAPTER  LII. 

INTANGIBLE  ASSETS. 

Sec. 
934.  Providing  for  taxing  intangible  assets  of  certain  corporations. 

§  934.     Providing  for  taxing  intangible  assets  of  certain  corpo- 
rations. 

An  act  for  the  taxation  of  the  intangible  assets  of  certain  cor- 
porations, associations  and  individuals,  and  to  provide  for  the 
creation  of  a  state  tax  board,  for  the  valuation  of  such  intangible 
assets,  and  for  the  distribution  of  said  values  for  local  taxation, 
and  for  the  assessment  of  said  assets,  and  the  levy  and  collection 
of  taxes  thereon ;  and  to  provide  for  the  repeal  of  all  laws  and 
parts  of  laws  laying  taxes  on  the  gross  incomes  of  the  corpora- 
tions, associations  and  individuals  affected  by  the  provisions  of 
this  act. 

Section  1.  Be  it  enacted  by  the  legislature  of  the  state  of 
Texas :  That  each  and  every  incorporated  railroad  company,  ferry 
company,  bridge  company,  turn-pike  or  toll  road  company,  wharf 
company,  telegraph  company,  inter-urban  railroad  company,  ex- 
press company,  chair  car  company,  refrigerator  car  company, 
stock  car  company,  tank  car  company,  and  every  other  car  com- 
pany except  sleeping  car,  dining  car  and  palace  car  companies 
which  are  especially  excepted  from  the  provisions  of  this  bill, 
and  every  packing  house  company  and  pipe  line  company  doing 
business  wholly  or  in  part  within  the  state  of  Texas,  whether 
incorporated  under  the  laws  of  this  state  or  of  any  other  state,  or 
of  any  territory  or  foreign  country,  and  every  other  company, 
corporation  or  association  doing  business  of  the  same  character 
in  this  state,  and  every  individual  or  association  of  individuals 
doing  such  business  shall  in  addition  to  the  ad  valorem  taxes  on 
on  their  unrendered  intangible  assets  and  property,  and  local  taxes 
tangible  properties  which  are  now  imposed  upon  them  by  law,  an- 
nually, beginning  with  the  first  day  of  January,  A.  D.  1906,  pay 
a  tax  to  the  state  for  the  year  1906,  and  for  each  year  thereafter 
thereon  to  the  counties  in  which  its  business  is  or  shall  hereafter 


Intangible  Assets.  ,  579 

be  carried  on,  which  additional  tax  shall  be  assessed  and  levied 
upon  such  assets  and  property  in  the  manner  hereinafter  pro- 
vided. The  place  or  places  where  such  local  taxes  are  to  be  paid, 
and  the  manner  of  the  apportionment  of  the  same  in  cases  where 
more  than  one  jurisdiction  is  entitled  to  a  share  of  such  tax,  shall 
be  determined  in  accordance  with  the  provisions  of  this  act. 

Sec.  2.  Between  the  second  day  of  January  and  the  first  day 
of  March  of  each  year,  every  company,  corporation  and  associa- 
tion embraced  within  the  provisions  of  the  first  section  of  this 
act,  or  coming  otherwise  within  its  scope  and  intent,  shall  make 
out  and  deliver  into  the  possession  of  the  comptroller  of  public 
accounts  of  the  state  of  Texas  a  statement  containing  the  informa- 
tion hereinafter  prescribed,  which  statement  shall  be  duly  verified 
by  the  affidavit  of  one  of  the  officers  of  the  company,  corpora- 
tion or  association  in  whose  behalf  it  is  made. 

Sec.  3.  Each  such  statement  shall  show  the  following  items 
and  particulars  as  the  same  stood  on  the  next  preceding  first  day 
of  January,  to  wit: 

(1)  The  name  of  the  company,  corporation  or  association 
making  the  statements,  and  the  character  of  its  business. 

(2)  The  authority  by  which  it  was  incorporated,  and  the  pur- 
poses of  its  incorporation  as  expressed  in  its  charter  or  articles 
of  association. 

(3)  The  locality  of  its  principal  office  and  the  amount  and 
kind  of  business  done  by  it  in  this  state,  and  the  total  gross  re- 
ceipts derived  from  its  business  therein,  including  a  due  propor- 
tion of  its  inter-state  business,  if  it  has  done  any  business  of  that 
character. 

(4)  Its  total  capital  stock  and  the  number  of  shares  which 
have  been  issued  and  are  outstanding,  and  the  par  or  face  value 
of  each  such  share. 

(5)  The  market  value  of  the  said  shares  of  stock,  or,  if  they 
have  no  market  value,  then  the  statement  must  show  the  actual 
value  thereof. 

(6)  A  brief  description  of  each  tract  of  real  estate  and  of 
the  improvements  thereon,  and  of  the  buildings,  structures,  ma- 
chinery, fixtures,  appliances  and  other  tangible  property  and  as- 
sets owned  and  assessed  or  liable  to  assessment  for  the  same  year 
within  this  state,  and  the  location  and  assessed  value  thereof, 
and  the  county,  city  or  town  wherein  the  same  is  assessed  for 


580  Taxation  in  Texas. 

taxation  for  state  and  county  purposes,  or  is  liable  to  assessment. 

(7)  A  brief  description  of  each  tract  of  land  and  of  the  im- 
provements thereon,  and  of  the  buildings,  structures,  machinery, 
fixtures,  appliances,  and  of  the  other  tangible  property  and  as- 
sets owned  and  held  outside  of  this  state,  and  of  all  other  property 
and  assets  having  a  fixed  situs  outside  thereof,  and  the  location 
of  each  item  of  such  property,  and  the  purpose  for  which  it  is 
used,  and  whether  or  not  it  is  specifically  used  in  the  business  of 
the  company,  corporation  or  association  making  the  report,  and  its 
true  and  fair  market  value,  and  the  sum  or  value  at  which  it  is 
assessed  for  taxation,  and  the  locality  in  which  it  is  assessed. 

(8)  A  statement  of  each  and  every  lien,  mortgage  and  other 
charge  upon  the  whole  or  any  part  of  the  property  of  said  com- 
pany, corporation  or  association,  with  a  statement  of  the  prop- 
erty encumbered  or  charged  thereby  and  of  the  amount  of  unpaid 
debt  secured  by  each  such  mortgage,  lien  or  charge,  and  of  the 
interest  charged  thereon,  and  to  what  extent  interest  has  been 
paid,  and  the  true  and  fair  market  value  of  every  such  debt. 

(9)  A  statement  of  the  gross  and  net  incomes  and  earnings 
for  the  next  preceding  twelve  months,  including  therein  all  in- 
terest on  investments,  and  all  rents,  fruits,  revenues  and  receipts 
from  every  source  whatsoever,  and  a  statement  of  the  income 
used  for  repairs  and  of  the  amount  used  for  betterments  and  the 
amount  used  for  extensions;  and  each  pipe  line  company  shall 
include  as  a  part  of  its  gross  receipts  such  sum  or  sums  as  it 
would  have  been  compelled  to  pay  out  for  conveying  its  own 
product,  if  another  company  had  conveyed  same  for  it. 

(10)  Every  railroad  company  and  every  telegraph  company, 
and  every  pipe  line  company  shall  show  in  each  statement  made 
by  it  the  following  particulars,  which  are  in  addition  to  the  fore- 
going requirements,  to  wit :  (a)  the  total  length  of  all  of  the  lines 
of  said  company,  whether  within  or  outside  of  this  state,  and  (b) 
the  total  length  of  so  much  of  said  lines  as  are  within  this  state, 
and  (c)  the  length  of  its  lines  in  each  of  the  counties  of  this 
state  into  which  its  lines  extend.  The  length  of  the  lines  of  the 
telegraph  companies  shall  be  estimated  and  stated  according  to 
its  mileage  of  poles,  conduits  and  cables,  or  either. 

(11)  Every  refrigerating  car  company,  chair  car  company, 
stock  car  company,  tank  car  company  and  every  other  car  com- 
pany, except  sleeping  car  companies,  dining  car  companies  and 


Intangible  Assets.  581 

palace  car  companies,  which  are  especially  excepted  from  the 
provisions  of  this  bill,  and  except  railroad  companies  under  the 
control  of  the  Texas  Railroad  Commission,  shall  also  and  in  ad- 
dition to  the  said  foregoing  requirements,  show  by  each  of  its 
said  statements,  (a)  the  total  mileage  traveled  by  the  cars  of 
said  company  during  the  next  preceding  twelve  months,  whether 
within  this  state  or  beyond  its  borders,  and  (b)  the  total  mileage 
traveled  by  such  cars  within  the  state  during  the  same  period, 
and  (c)  the  mileage  traveled  by  such  cars  within  each  county  in 
this  state  during  said  period.  ' 

(12)  Every  express  company  shall  also,  in  addition  to  the 
foregoing  requirements  having  application  to  such  companies, 
show  (a)  its  total  gross  receipts  for  all  business  done  under  its 
charter,  whether  within  this  state  or  outside  of  it,  during  the  next 
preceding  twelve  months,  and  (b)  its  total  gross  receipts  within 
this  state  for  the  same  kind  of  business  done  during  the  same 
period,  including  a  due  proportion  of  receipts  from  interstate 
business,  and  (c)  its  total  gross  receipts  in  each  county  in  this 
state  for  the  same  kind  of  business  done  during  the  same  period. 

Sec.  4.  The  state  comptroller  of  public  accounts  shall  receive 
all  tax  statements  oflfered  to  him  under  the  provisions  hereof, 
and  he  shall  endorse  upon  each  the  date  upon  which  he  received 
it,  signing  the  endorsement  officially.  He  shall  examine  the  state- 
ments as  soon  as  may  be  practicable,  and  if  any  of  them  are  in- 
sufficient, or  if  he  shall  believe  other  or  further  information  to 
be  necessary,  he  shall  at  once  demand  such  additional  statements 
and  information  as  he  may  think  proper. 

Sec.  5.  On  the  first  Monday  after  the  first  day  of  March  of 
each  year,  or  as  soon  thereafter  as  may  be  practicable,  the  said 
comptroller  shall  place  all  facts  and  statements,  and  all  informa- 
tion relating  thereto  which  he  has  received,  before  a  state  tax 
board,  which  is  hereby  created,  and  which  shall  consist  of  the 
comptroller  of  public  accounts  and  the  secretary  of  state  and  of  a 
third  member,  to  be  known  as  the  tax  commissioner  of  the  state 
of  Texas,  who  shall  be  appointed  by  the  Governor,  with  .the  ad- 
vice and  consent  of  the  senate,  subject  to  the  provisions  of  Sec- 
tion 12  of  Article  4  of  the  State  Constitution.  The  tax  commis- 
sioner shall  hold  office  for  two  years,  and  until  his  successor  is 


582  Taxation  in  Texas. 

appointed  and  qualified,  and  shall  receive  an  annual  compensa- 
tion of  two  thousand  five  hundred  dollars  ($2,500),  in  equal  in- 
stallments, payable  at  the  end  of  each  month. 

Sec.  6.  Said  state  tax  board  shall  carefully  examine  and  con- 
sider the  said  statements  and  information,  and  shall  hear  evidence 
and  secure  further  and  additional  information  so  far  as  may  be 
in  their  power,  to  show  the  true  value  of  the  properties  afore- 
said, and  the  true  value  of  that  portion  of  every  such  property, 
which  is  situated  within  this  state,  and  within  the  respective  coun- 
ties, and  each  interested  company,  corporation  and  association 
may  appear  and  introduce  material  and  relevant  testimony  before 
the  said  board,  touching  the  true  value  of  its  said  property  within 
this  state,  and  the  apportionment  thereof,  and  the  board  shall  have 
full  power  to  summon  and  swear  witnesses.  From  the  state- 
ments, evidence  and  information  adduced  before  it,  the  state  tax 
board  shall  ascertain,  fix  and  determine  the  true  value  of  each 
such  property,  and  of  the  portion  thereof  which  is  situated  within 
this  state,  and  the  respective  values  of  the  several  portions  within 
the  different  counties  thereof,  in  which  any  such  portions  are  tax- 
able, and  for  that  purpose  said  board  may  require  and  compel 
any  person  or  persons,  or  the  officers  and  agents,  or  atiy  of  them, 
of  any  company,  corporation  or  association  embraced  within  the 
terms  of  this  act,  to  appear  before  it  with  such  books,  papers,  doc- 
uments and  information  as  the  board  may  require,  and  to  submit 
themselves  to  examination  by  the  board. 

Sec.  7.  In  so  far  as  the  other  evidence  and  information  ad- 
duced before  them  does  not  make  it  appear  to  the  members  of  the 
said  state  tax  board  improper  or  unjust  for  them  to  do  so,  said 
board  shall,  in  fixing  the  true  cash  value  of  the  entire  property 
of  any  company,  corporation  or  association  embraced  within  the 
provisions  hereof,  take  as  a  basis  therefor  the  aggregate  market 
or  true  value  of  all  its  shares  of  stock,  adding  thereto  the  aggre- 
gate market  or  true  value  of  all  indebtedness  secured  by  any 
mortgage,  lien  or  other  charge  upon  its  property  or  assets,  and 
the  sum  so  produced  shall  be  deemed  and  treated  as  the  true  cash 
value  of  said  entire  property.  And,  in  cases  where  the  company, 
corporation  or  association  does  business  and  has  property  both 
within  this  state  and  outside  of  it,  in  ascertaining  the  true  cash 
value  of  its  property  within  this  state,  said  state  tax  board  shall 
next  ascertain  from  the  said  statements,  or  otherwise,  the  market 


Intangible  Assets.  583 

or  true  value  in  the  locality  where  the  same  is  situated,  of  each 
of  the  several  pieces  of  real  estate  situated  outside  of  this  state, 
and  of  its  other  properties,  if  any,  outside  thereof,  and  not  spe- 
cifically used  in  the  business  of  said  company,  corporation  or  as- 
sociation, and  the  aggregate  of  said  values  shall  be  deducted  from 
the  gross  value  of  the  property  as  above  ascertained,  and  the 
result  of  the  said  deduction,  and  the  sum  or  value  thereby  pro- 
duced, shall  be  deemed  and  treated  as  the  true  cash  value  of  all 
the  property  of  the  said  company,  corporation  or  association  in 
actual  use  in  its  business.     The  said  state  tax  board  shall  then 
fix  the  value  of  the  property  within  this  state,  using  as  a  basis 
and  beiag  guided  so  far  as  it  shall  not  believe  it  unjust  to  do  so, 
by  the  proportion  which  it  finds  to  exist  between  the  total  lines 
or  total  receipts,  both  within  this  state  and  outside  of  it,  and  the 
lines  controlled  or  operated,  or  the  receipts  obtained  entirely  with- 
in this  state,  so  that  there  shall  be  apportioned  to  this  state,  as 
the  true  value  of  the  property  within  its  borders  of  each  company, 
corporation,  person  and  association  doing  business  within  and 
outside  of  its  limits,  such  a  portion  of  the  cash  value  of  all  of 
the  property  of  such  company,  corporation,  individual  or  associa- 
tion which  is  specifically  used  in  its  business,  as  is  borne  by  its 
total  lines  or  total  receipts  within  this  state,  when  compared  with 
the  total  lines  or  total  receipts  both  inside  and  outside  of  the  state 
of  Texas.  From  the  entire  value  of  the  property  within  this  state, 
when  ascertained  as  directed  by  this  act,  the  said  state  tax  board 
shall  deduct  the  assessed  value  for  taxation  of  all  the  property 
and  assets  of  said  company,  corporation  or  association,  as  the 
same  is  found  to  be  assessed  for  state  and  county  taxation,  in  the 
locality  wherein  the  same  is  legally  taxable,  and  the  residue  and 
remainder  of  value  shall  be  by  the  said  board  fixed  and  determined 
as  the  true  value  of  the  unassessed  franchises  and  intangible  prop- 
erties owned  and  held  by  said  company,  corporation  or  associa- 
tion within  this  state.     The  said  state  tax  board  shall  apportion 
the  sum  of  the  said  total  taxable  values  within  the  State,  among 
and  between  the  counties  in  which   such  company,  corporation 
or  association  does  business,  in  proportion  to  the  amount  of  busi- 
ness done  in  and  the  receipts  derived  from  each  locality,  except 
that  in  case  of  a  railroad  company,  or  of  a  car  company,  or  of  a 
telegraph  company,  then  the  apportionment  to  each  county  shall 
be  in  proportion  to  the  line  or  car  mileage  therein;  provided, 


584  Taxation  in  Texas. 

however,  that  the  said  Tax  Board  shall  have  the  right  and  it  is 
hereby  declared  to  be  its  duty  to  make  use  of  all  evidence  put 
before  it,  and  of  all  material  facts  at  its  command  in  valuing 
and  in  apportioning  the  values  of  the  aforesaid  properties,  and 
if  it  shall  believe  some  other  method  of  calculation  than  that 
herein  specifically  prescribed  is  necessary  in  order  to  produce 
just  and  lawful  results,  it  shall  follow  the  method  which  under 
all  the  circumstances  it  believes  best  calculated  to  bring  about 
a  fair  and  equitable  valuation  and  apportionment  of  such  prop- 
erty. 

Sec.  8.  Whenever  any  person  or  association  of  persons,  not 
being  a  corporation,  nor  having  a  capital  stock,  shall  engage  in 
this  State  in  any  character  of  business  embraced  within  this  act, 
then  the  capital  and  property,  or  the  certificates  or  other  evi- 
dences of  the  rights  or  interests  of  the  persons  engaged  in  such 
business  shall  be  deemed  and  treated  as  the  capital  stock  of  such 
person  or  association  of  persons,  for  the  purposes  of  taxation, 
and  for  all  other  purposes  under  this  act,  and  shall  be  estimated 
and  valued,  and  the  unassessed  intangible  property  values  thereof 
when  ascertained  shall  be  apportioned  and  distributed  and  as- 
sessed and  taxed  under  the  provisions  hereof  in  like  manner 
as  if  such  person  or  association  of  persons  were  a  corporation, 
and  each  such  person  and  association  of  persons  shall  annually 
within  the  time  and  in  the  manner  herein  provided,  make  the 
statements  and  reports  and  give  the  information  required  by 
this  act  of  the  aforesaid  companies,  corporations  and  associations, 
and  shall  be  subject  to  all  penalties  herein  fixed,  and  to  all  the 
terms  and  provisions  of  this  act. 

Sec.  9.  The  State  Tax  Board,  after  having  first  determined 
and  fixed  the  true  cash  value  of  the  unassessed  intangible  prop- 
erty within  the  State  of  Texas  of  the  before-mentioned  individ- 
uals, companies,  corporations  and  associations,  in  accordance  with 
the  provisions  hereof,  shall,  annually,  on  or  before  the  thirtieth 
day  of  May  of  each  year,  report  to  the  tax  assessor  of  every 
county  in  this  State  in  which  any  of  said  intangible  and  unas- 
sessed property  is  taxable  under  this  act,  a  description  of  the 
property  taxable  therein,  and  the  value  thereof  apportioned  to 
said  county,  and  the  name  and  residence  or  place  of  business  of 
the  owner,  and  all  other  necessary  particulars,  and  the  said  prop- 
erty shall  thereupon  be  assessed  by  the  assessor  for  taxation  in 


Intangible  Assets.       '  585 

like  manner  as  other  property,  and  shall  be  equalized  and  taxed, 
and  the  taxes  collected  as  in  the  case  of  other  property.  And  so 
long  as  any  corporation,  company  or  association  shall  pay  all  ad 
valorem  taxes  required  by  law,  the  individual  stockholders  shall 
not  be  required  to  list  its  shares  for  taxation,  or  to  pay  ad 
valorem  taxes  on  said  shares,  nor  shall  any  company,  corporation, 
association,  person  or  persons,  complying  with  the  provisions  of 
this  act,  be  required  to  pay  any  other  state  or  county  ad  valorem 
taxes  on  any  of  its  intangible  assets  in  Texas. 

Sec.  10.  Every  person  and  association  of  persons,  and  every 
company,  corporation  or  association,  embraced  within  the  pro- 
visions of  this  act,  which  shall  fail  to  make  the  returns  and  state- 
ments, or  any  of  them,  herein  provided,  within  the  time  herein 
limited,  or  which,  after  reasonable  notice,  shall  fail  to  give  any 
additional  evidence,  or  to  furnish  any  additional  information  re- 
quired by  the  said  State  Tax  Board,  or  by  said  State  Comptroller, 
by  authority  hereof,  shall  forfeit  and  pay  to  the  State  two  hun- 
dred dollars  ($200)  for  each  and  every  day  during  which  it  shall 
continue  in  default,  which  shall  be  recovered  by  suit  by  the 
Attorney-General  of  the  State  of  Texas,  and  the  venue  of  every 
such  suit  is  hereby  fixed  within  the  county  of  Travis,  in  said 
State,  and  the  courts  of  the  said  county  are  hereby  vested  with 
jurisdiction  of  the  said  causes. 

Sec.  11.  If  the  property  of  any  individual,  company,  corpora- 
tion or  association  shall  be  in  the  hands  of  any  receiver,  assignee, 
trustee  in  bankruptcy,  or  other  person  holding  under  any  court 
or  for  the  benefit  of  any  creditor,  or  creditors,  then  the  statements, 
reports,  information,  books  and  papers  aforesaid  shall  be  fur- 
nished by  said  receiver,  assignee,  trustee  or  other  person,  or  by 
some  officer  or  agent  acting  under  him,  in  the  same  manner  and 
to  the  same  extent  as  is  hereinbefore  provided  in  cases  where 
the  individual  or  the  company  or  association  is  in  possession. 

Sec.  12.  That  upon  the  taking  eflfect  of  this  act,  and  upon  com- 
pliance with  its  provisions  by  the  individuals,  companies,  corpo- 
rations and  associations  hereby  affected,  and  upon  the  payment 
of  the  taxes  imposed  hereunder,  if  any  are  imposed,  all  laws  and 
parts  of  laws  laying  taxes  upon  the  gross  receipts  of  said  individ- 
uals, companies,  corporations  and  associations,  shall  be  and  the 
same  are  hereby  repealed.    Acts  1905,  p.  351. 


586  Taxation  in  Texas. 

"Laws  1905,  p.  351,  Ch.  146,  provides  for  an  ascertainment  by 
a  state  board  of  the  value  of  intangible  property  of  certain  cor- 
porations and  individuals  with  quasi  public  functions.  Sec.  9 
(p.  355)  provides  that  the  board,  after  having  determined  such 
value,  shall  report  to  the  assessors  of  the  counties  in  which  any 
of  such  property  exists  a  description  thereof,  and  the  value  ap- 
portioned to  the  county,  'and  the  said  property  shall  be  assessed 
*  *  *  as  other  property  and  shall  be  equalized  *  *  *  as 
in  the  case  of  other  property.'  The  act  nowhere  expressly  binds 
the  local  assessor  to  accept  the  valuation  so  reported.  Held,  not 
unconstitutional  as  requiring  property  to  be  assessed  and  its 
values  equalized  elsewhere  than  locally  in  the  various  counties. 

"Laws  1905,  p.  351,  Ch.  146,  is  declared  to  be  in  its  caption 
an  act  'for  the  taxation  of  the  intangible  assets  of  certain  cor- 
porations and  individuals,'  'and  for  the  assessment  of  said  as- 
sets.' Section  1  provides  that  the  corporations  and  individuals 
named  shall  'pay  a  tax'  on  such  intangible  assets,  to  be  levied 
and  assessed  under  the  act.  The  act,  however,  in  effect,  only 
provides  for  an  ascertaining  of  the  value  of  the  intangible  assets 
by  a  state  board,  leaving  the  assessment  to  the  local  assessors. 
Sec.  9  (p.  355)  thereof  provides  that  no  person  complying  with 
its  provisions  shall  be  required  to  pay  other  taxes  on  intangible 
property.  Held,  that,  since  local  assessors  are  obliged  in  any 
event  to  assess  intangible  property,  the  law  could  not  be  consid- 
ered as  unconstitutional  as  exempting  from  'taxation  intangible 
assets  not  mentioned  therein. 

"Laws  1905,  p.  351,  Ch.  146,  making  the  Secretary  of  State 
and  State  Comptroller  members  of  the  State  Tax  Board,  which 
has  power  to  ascertain  the  valuation  of  intangible  property  and 
report  it  for  assessment  to  the  local  assessors,  is  not  void  as  vest- 
ing judicial  power  in  executive  officers,  especially  since  the 
board  is  not  vested  with  power  to  itself  make  the  assessment. 

"Laws  1905,  p.  351,  Ch.  146,  provides  a  state  board  for  ascer- 
taining the  value  of  the  intangible  property  of  certain  corpora- 
tions and  individuals  engaged  in  quasi  public  functions,  but  does 
not  bind  the  local  assessors  to  accept  the  valuation  reported  to 
them  by  the  board.  Held,  that  the  fact  that  assessors  had  habitu- 
ally undervalued  property,  and  would  probably  continue  to  do 
so,  did  not  authorize  an  injunction  restraining  the  board  from 


Intangible  Assets.  587 

fulfilling  its  function  on  an  assumption  that,  under  the  new  law, 
assessors  would  fix  property  reported  by  the  board  at  a  propor- 
tionately higher  figure  than  other  property. 

"Laws  1905,  p.  351,  Ch.  146,  provides  a  method  whereby  the 
State  Tax  Board  therein  created  may  ascertain  the  value  of  the 
intangible  property  of  certain  corporations,  and  provides  that 
such  method  shall  be  adopted  'in  so  far'  as  other  evidence  does 
not  make  it  appear  unjust,  and  that  if  the  board  shall  deem  it 
necessary  to  produce  just  results  it  shall  follow  the  method  best 
adapted  to  that  end.  Held,  that  it  could  not  be  contended  that 
the  method  provided  was  exclusive,  depriving  the  owners  of  due 
process  of  law. 

"Laws  1905,  p.  351,  Ch.  146,  provides  for  an  ascertainment  by 
a  state  board  of  the  value  of  intangible  property  of  certain  cor- 
porations and  individuals  with  quasi  public  functions.  Sec.  9 
(p.  355)  provides  that  the  board,  after  having  determined  such 
value,  shall  report  to  the  assessors  of  every  county  in  which  any 
of  such  property  exists  a  description  of  the  property,  and  the 
value  apportioned  to  the  county,  'and  the  said  property  shall  be 
assessed  *  *  *  jig  other  property  and  shall  be  equalized 
*  *  *  as  in  the  case  of  other  property.'  Held,  that  the  local 
assessors  were  not  bound  to  accept  the  valuation  reported  to 
them  in  assessing  the  property  so  as  to  deprive  the  owners  thereof 
of  due  process  of  law."  AT.,  K.  &  T.  Ky.  Co.  v.  Shannon,  97  S. 
W.  527,  100  Tex.  379. 
Right  to  enjoin  collection  under  invalid  act. 

"Where  the  petition  in  a  suit  to  restrain  officers  of  a  state 
from  taking  any  action  under  a  statute  relating  to  the  assess- 
ment of  intangible  assets  of  corporations  prays  that  they  be 
enjoined  from  taking  action  generally  under  the  statute,  and  the 
officers  will,  unless  enjoined,  proceed  to  value  the  property  re- 
ferred to  in  the  statute  for  the  present  and  for  subsequent  years, 
equity  has  jurisdiction  to  forbid  future  acts  by  the  officers,  pro- 
vided the  statute  is  unconstitutional."  M.,  K.  &  T.  Ry.  Co.  v. 
Shannon,  100  S.  W.  138,  100  Tex.  379. 
Not  unconstitutional  as  dividing  powers  of  government. 

"The  intangible  assets  act  (Act  April  17,  1905,  p.  351,  Ch. 
146),  which  makes  the  Secretary  of  State  and  the  Comptroller, 
required  by  Const.,  Art.  4,  Sees.  21,  23,  to  perform  prescribed 
executive  duties  and  such  others  as  may  be  prescribed  by  law, 


588  Taxation  in  Texas. 

members  of  a  state  tax  board,  with  power  to  value  the  intangible 
assets  of  railroads,  and  for  the  distribution  of  the  values  for 
local  taxation,  is  not  void  as  vesting  in  them  judicial  power,  in 
conflict  with  Const.,  Art.  2,  Sec.  1,  dividing  the  powers  of  gov- 
ernment into  the  legislative,  executive  and  judicial  departments, 
as  the  word  'judicial,'  as  used  in  the  section  and  Art.  5,  creating 
the  judicial  department,  when  strictly  construed,  means  courts 
with  power  to  determine  causes  between  parties  affecting  the 
rights  of  persons  as  to  their  life,  liberty  and  property."  M.,  K. 
&  T.  Ry.  Co.  V.  Shannon,  100  S.  W.  138,  100  Tex.  379. 
Act  constitutional  as  to  assessments. 

"The  intangible  assets  act  (Act  April  17,  1905,  p.  351,  Ch. 
146),  providing  for  the  taxation  of  the  intangible  assets  of  rail- 
roads, and  for  the  creation  of  a  state  tax  board  for  the  valuation 
of  such  assets,  and  for  the  distribution  of  such  values  for  local 
taxation,  is  not  in  conflict  with  Const.,  Art.  8,  Sees.  8,  11,  14, 
providing  for  the  assessment  of  railroad  property  in  the  counties 
where  the  same  is  situated,  and  for  the  election  of  a  county  as- 
sessor, especially  in  view  of  Sec.  17,  providing  that  the  specifi- 
cation of  the  objects  of  taxation  shall  not  deprive  the  Legislature 
of  the  power  to  require  other  objects  to  be  taxed,  etc. 

"Const.,  Art.  8,  Sec.  14,  providing  for  the  election  of  an  as- 
sessor of  taxes  for  each  county,  does  not  deprive  the  Legislature 
of  the  power  to  devolve  the  duty  on  another  officer  to  assess 
property  in  some  special  case  where  the  county  assessors  are 
unable  to  ascertain  with  any  reasonable  degree  of  approximation 
the  value  of  the  property  to  be  assessed,  especially  in  view  of 
Section  1,  providing  that  taxation  shall  be  equal  and  uniform,  in 
proportion  to  the  value  of  the  property  ascertained  as  provided 
by  law. 

"The  intangible  assets  act  (Act  April  17,  1905,  p.  351,  Ch.  146), 
providing  for  the  taxation  of  the  intangible  assets  of  railroads, 
and  the  creation  of  a  state  board  for  the  valuation  thereof,  and 
authorizing  the  board  to  adopt  the  aggregate  market  value  of 
the  stocks  and  bonds  of  a  railroad  as  the  test  of  true  cash  value 
of  its  entire  property,  and  to  deduct  the  assessed  value  of  the 
physical  property  from  the  value  of  the  entire  property,  to  ar- 
rive at  the  value  of  the  intangible  assets,  does  not  prescribe  an 
artificial  and  arbitrary  rule  is  not  in  conflict  with  the  due  process 
of  law  provisions  of  the  state  and  federal  Constitutions. 


Intangible  Assets.  589 

"The  intangible  assets  act  (Act  April  17,  1905,  p.  351,  Ch.  146), 
providing  for  the  taxation  of  the  intangible  assets  of  railroads, 
and  for  the  creation  of  a  state  tax  board  for  the  valuation  of  such 
assets  and  for  the  distribution  of  such  values  for  local  taxation, 
is  not  invalid  because  expressly  excepting  from  its  operation 
sleeping,  dining,  and  palace  car  companies,  on  the  ground  of  un- 
lawfully discriminating  against  the  railroads,  for,  if  the  exempted 
companies  have  tangible  assets,  the  same  may  be  reached  by 
Rev.  St.,  Art.  5076,  as  amended  by  Gen.  Laws  1905,  p.  357,  Ch. 
147. 

"The  fact  that  county  assessors  of  counties  through  which  a 
railroad  line  is  operated  assess  property  at  less  than  its  true 
value  does  not  operate  to  make  the  taxes  imposed  pursuant  to 
the  intangible  assets  act  (Act  April  17,  1905,  p.  351,  Ch.  146), 
providing  for  the  taxation  of  the  intangible  assets  of  railroad, 
and  for  the  creation  of  a  state  tax  board  for  the  valuation  for 
such  assets,  unequal."  M.,  K.  &  T.  Ry.  Co.  v.  Shannon,  100  S. 
W.  138;  100  Tex.  379. 
Act  valid  as  to  uniformity  of  Taxation : 

"The  method  prescribed  for  ascertaining  the  value  of  the  in- 
tangible assets  does  not  violate  Const.,  Art.  8,  Sec.  1,  requiring 
taxation  to  be  equal  and  uniform."    M.,  K.  &  T.  Ry.  Co.  v.  Shan- 
non, 100  S.  W.  138;  100  Tex.  379. 
Not  in  conflict  with  Bill  of  rights : 

"The  fact  that  county  assessors  of  counties  through  which  a 
railroad  line  is  operated  assess  property  at  less  than  its  true  value 
does  not  operate  to  make  the  taxes  imposed  pursuant  to  the  in- 
tangible assets  act  (Act  April  17,  1905,  p.  351,  Ch.  146),  pro- 
viding for  the  taxation  of  the  intangible  assets  of  railroads,  and 
for  the  creation  of  a  state  tax  board  for  the  valuation  for  such 
assets,  unequal."  M.,  K.  &  T.  Ry.  Co.  v.  Shannon,  100  S.  W. 
138;  100  Tex.  379. 

"The  intangible  assets  act  (Act  April  17,  1905,  p.  351,  Ch. 
146),  provides  for  the  taxation  of  the  intangible  assets  of  rail- 
roads, and  in  section  12  (page  356)  provides  that  on  the  taking 
effect  of  the  act,  and  on  compliance  with  its  provisions  by  the 
railroads  affected,  and  on  the  payment  of  the  taxes  imposed,  laws 
imposing  taxes  on  the  gross  receipts  of  railroads  shall  be  repealed. 
At  the  same  session  a  statute  imposing  a  tax  on  the  gross  incomes 


590  Taxation  in  Texas. 

of  railways  was  passed,  and  provided  that  the  same  should  not 
be  collected  from  railroads  paying  the  tax  on  its  intangible  assets. 
Held,  that  the  intangible  assets  act  is  not  in  conflict  with  Bill  of 
Rights,  Art.  1,  Sec.  28,  declaring  that  no  power  of  suspending 
laws  shall  be  exercised  except  by  the  Legislature ;  the  purpose 
of  the  Legislature  being  to  provide  that  the  gross  earnings  taxes 
should  cease  on  railroads  paying  the  taxes  on  their  intangible 
assets."  M.,  K.  &  T.  Ry.  Co.  v.  Slummn,  100  S.  W.  138,  100 
Tex.  379. 
Cannot  restrain  on  unfair  assessment. 

"The  intangible  assets  of  a  railroad  company  in  a  county  were 
assessed  at  their  full  value,  and  its  tangible  property  was  assessed 
at  50  per  cent,  of  its  value,  while  the  property  of  other  taxpayers 
was  assessed  at  75  per  cent,  of  its  value.  If  all  the  property 
of  the  railroad  company  in  the  county  had  been  assessed  at  75 
per  cent,  of  its  value,  the  amount  of  property  on  which  it  was 
taxed  would  have  been  increased.  Held,  that  it  could  not  restrain 
the  collection  of  taxes  on  its  intangible  property  because  of  an 
unfair  basis  of  taxation,  as,  so  long  as  a  property  owner  is  only 
called  upon  to  pay  on  the  same  valuation  as  others,  he  is  not  enti- 
tled to  equitable  relief,  although  one  piece  of  his  property  is  val- 
ued above  another,  if  there  be  a  sufificient  decrease  in  such  other  to 
make  him  pay  the  same  proportion  of  taxes  on  what  he  owned 
as  every  other  citizen  is  required  to  pay."  M.,  K.  &  T.  Ry.  Co.  v. 
Hassell,  123  S.  W.  190. 
Assessments : 

"Act  30th  Leg.  (Laws  1907,  p.  469,  Ch.  17),  amending  Act 
29th  Leg.  (Laws  1905,  p.  351,  Ch.  146),  providing  for  the  taxing 
of  the  intangible  assets  of  certain  corporations,  is  not  violative 
of  Const.,  Art.  8,  Sec.  11,  requiring  all  property  to  be  assessed 
in  the  county  in' which  it  is  situated,  nor  section  14,  empowering 
the  tax  collector  to  assess  the  value  of  property,  in  so  far  as  it 
relates  to  the  intangible  assets  of  a  railroad  company;  such  con- 
stitutional provisions  being  applicable  only  to  property  having  a 
fixed  situs  within  a  given  county. 

"The  Legislature,  having  authority  to  create  a  state  board  to 
assess  the  intangible  assets  of  corporations,  as  it  did  by  Act 
30th  Leg.   (Laws  1907,  p.  469,  Ch.  17),  it  was  also  authorized 


Intangible  Assets.  591 

to  prohibit  an  interference  with  the  assessment  made  by  the 
board  of  local  officers  of  counties  to  which  a  portion  of  the 
assessment  was  apportioned. 

"Under  Act  30th  Leg.  (Laws  1907,  pp.  475,  476,  Ch.  17,  sec- 
tions 16,  17),  forbidding  the  county  assessor  and  board  of  equali- 
zation from  interfering  with  the  assessment  of  intangible  property 
of  corporations  by  the  state  board,  a  county  board  of  equalization 
had  no  power  to  grant  relief  to  a  railroad  company  for  an  un- 
equal assessment  of  its  intangible  assets  in  proportion  to  the 
assessment  of  other  property  within  the  county,  and  hence  a  rail- 
road company  was  not  required  to  apply  to  such  board  for  relief 
before  suing  to  restrain  the  enforcement  of  the  tax. 

"Where  the  property  of  individuals  in  a  county  was  assessed 
at  66  2-3  per  cent,  of  its  real  value,  in  accordance  with  a  de- 
liberately adopted  policy,  an  assessment  of  the  intangible  assets 
of  a  railroad  company  apportioned  to  that  county  at  full  value 
constituted  a  violation  of  Const.,  Art.  8,  Sec.  1,  requiring  all 
property  to  be  taxed  in  proportion  to  its  value. 

"Such  assessment  is  violative  of  Const.,  Art.  8,  Sec.  1,  requir- 
ing equality  and  uniformity  of  taxation. 

"Such  assessment  is  violative  of  Fed.  Const.,  Amend.  14,  Sec. 
1,  as  denying  to  railroad  companies  the  equal  protection  of  the 
Constitution  and  laws  of  the  state."  Lively  v.  M.,  K.  &  T.  Ry. 
Co.,  120  S.  W.  852. 

"Where  the  property  of  the  individuals  in  a  county  was  as- 
sessed at  50  per  cent,  of  its  real  value  in  accordance  with  a  de- 
liberately adopted  plan,  an  assessment  of  intangible  property  of  a 
railroad  situated  in  the  county  at  full  value  violated  Const,  Art. 
8,  Sec.  1,  requiring  equality  and  uniformity  of  taxation. 

"Such  assessment  was  violative  of  Const.  U.  S.,  Amend.  14, 
guaranteeing  equal  protection  of  the  laws."  M.,  K.  &  T.  Ry.  Co. 
V.  Kone,  122  S.  W.  424. 

Act  of  Thirtieth  Legislature  creating  intangible  tax  board : 
Section  1.  That  Chapter  146  of  the  Acts  of  the  Twenty- 
ninth  Legislature,  approved  April  17,  1905,  being  an  act 
entitled  "An  act  for  the  taxation  of  the  intangible  assets  of 
certain  corporations,  associations  and  individuals,  and  to  pro- 
vide for  the  creation  of  a  state  tax  board,  for  the  valuation  of 
such  intangible  assets,  and  for  the  distribution  of  said  values 


592  Taxation  in  Texas. 

for  local  taxation,  and  for  the  assessment  of  said  assets,  and 
the  levy  and  collection  of  taxes  thereon ;  and  to  provide  for 
the  repeal  of  all  laws  and  parts  of  laws  laying  taxes  on  the 
gross  incomes  of  the  corporations,  associations  and  individ- 
uals affected  by  the  provisions  of  this  act,"  be  amended  so 
as  to  read  hereafter  as  follows : 

Section  1.  There  is  hereby  created  a  state  tax  board,  which 
shall  be  composed  of  the  comptroller  of  public  accounts,  the 
secretary  of  state  and  a  third  member  to  be  known  as  tax 
commissioner  of  the  state  of  Texas.  Except  as  herein  other- 
wise provided,  such  tax  commissioner  shall  be  appointed  by 
the  Governor  in  accordance  with  and  subject  to  the  provisions 
of  Section  12  of  Article  4  of  the  Constitution  of  Texas,  and 
shall  hold  his  office  for  two  years  and  until  his  successor  shall 
be  appointed  and  qualified  and  shall  receive  an  annual  salary 
of  two  thousand  five  hundred  dollars,  in  equal  installments 
payable  at  the  end  of  each  month.  The  present  tax  commis- 
sioner, heretofore  appointed,  shall  hold  his  office  until  the  expira- 
tion of  the  time  for  which  he  was  originally  appointed  and  until 
his  successor  shall  have  been  appointed  and  qualified.  A  majority 
of  said  board  shall  constitute  a  quorum  to  do  business.  A 
record  of  the  proceedings  of  said  board  shall  be  kept  at  the 
state  capitol,  and  shall  be  open  to  the  inspection  of  the  public. 

Sec.  2.  Before  the  tax  commissioner  shall  enter  upon  or 
proceed  with  the  discharge  of  his 'official  duties  he  shall  exe- 
cute a  bond  payable  to  the  state  of  Texas,  at  Austin,  in  Travis 
County,  Texas,  in  the  sum  of  ten  thousand  dollars,  with  two 
or  more  good  and  sufficient  sureties,  to  be  approved  by  the 
Governor,  conditioned  for  the  faithful  discharge  of  his  official 
duties  as  such  tax  commissioner  and  shall  take  and  subscribe 
the  oath  of  office  prescribed  by  the  constitution  of  this  state, 
which  bond  and  oath  shall  be  filed  in  the  office  of  the  secre- 
tary of  state. 

Sec.  3.  The  state  board  may  employ  for  not  more  than 
four  months  in  each  year  a  secretary  who  shall  be  an  expert 
stenographer,  and  who  shall  receive  for  his  services  as  secre- 
tary and  stenographer  a  salary  of  one  hundred  dollars  per 
month. 

Sec.  4.  It  shall  be  the  duty  of  said  tax  board  (a)  to  make 
such  rules  and  regulations  as  said  board  shall  deem  proper 


Intangible  Assets.  593 

with  respect  to  its  own  meetings  and  procedure,  and  to  effect- 
ually carry  out  the  purposes  for  which  said  board  is  con- 
stituted. 

(b)  To  examine  all  books,  papers  and  accounts  and  to  in- 
terrogate under  oath,  or,  otherwise,  any  and  all  persons  whom 
said  board,  or  any  member  thereof,  may  desire  to  examine  for 
the  purpose  of  obtaining  or  acquiring  any  and  all  information 
that  may  in  any  manner  aid  in  securing  a  compliance  with 
any  tax  law  or  revenue  law  of  this  state  by  any  and  all  per- 
sons, companies,  corporations  or  associations  liable  to  taxa- 
tion or  to  pay  any  license  fee  under  any  law  of  this  state, 
which  is  now  in  force  or  which  may  hereafter  be  enacted. 

(c)  To  make  diligent  investigation  and  inquiry  concern- 
ing the  revenue  laws  and  systems  of  other  states  and  countries, 
so  far  as  the  same  are  made  known  by  published  reports,  or 
statistics,  or  can  be  ascertained  by  correspondence  with  offi- 
cers thereof,  and  with  the  aid  of  information  thus  or  other- 
wise obtained,  together  with  experience  and  observation  of  the 
operation  of  the  laws  of  this  state,  to  recommend  to  the  legisla- 
ture, at  each  regular  session  thereof,  such  amendments,  changes 
or  modifications  of  the  laws  of  this  state,  and  such  additional  laws 
as  may  to  said  board,  or  any  member  thereof,  seem  necessary 
or  proper  to  remedy  injustice  or  irregularity  in  taxation,  and 
to  facilitate  the  assessment  of  taxes  and  collection  of  public 
revenues. 

(d)  To  report  to  the  legislature,  at  each  regular  session 
thereof,  the  whole  amount  of  state  revenues  collected  in  this 
state  for  all  purposes,  and  the  sources  thereof,  the  amount  of 
such  revenues  which  may  be  lost  to  the  state  through  failure 
to  make  collection  and.  the  cause  of  such  losses,  a  summary  of 
the  proceedings  of  said  board  since  the  date  of  its  last  report, 
and  such  other  matters  concerning  the  public  revenues  as  said 
board,  or  any  member  thereof,  may  deem  to  be  of  public 
interest. 

Sec.  5.  Said  tax  board,  or  any  member  thereof,  or  the  state 
revenue  agent  under  the  direction  of  said  board,  or  of  the 
Governor  of  Texas,  shall,  at  least  once  in  each  year,  visit  such 
counties  of  the  state  as  said  board  or  the  said  Governor  may 
direct,  for  the  purpose  of  investigating  into  and  aiding  in  the 

38 


594  Taxation  in  Texas. 

enforcement  of  all  revenue  laws  of  this  state,  and  especially 
those  concerning  the  rendition,  assessment  and  collection  of 
taxes. 

Sec.  6.  Each  member  of  said  state  tax  board  shall  have 
power  to  administer  oaths  and  to  subpoena  and  examine  wit- 
nesses, and  to  issue  subpoenas  duces  tecum,  and  shall  have 
access  to  and  power  to  order  the  production  before  such 
board,  or  any  member  thereof,  of  any  and  all  books,  docu- 
ments and  papers  which  may  be  in  the  possession  or  under 
the  control  of  any  person,  company,  corporation  or  receiver 
assignee,  trustee  in  bankruptcy,  or  bailee,  whenever  such 
board  or  any  member  thereof,  may  consider  same  necessary 
or  proper  in  the  prosecution  of  any  injury  under  or  in  the 
execution  of  any  provision  of  this  act ;  and  all  such  process 
shall  be  served  under  the  provisions  of  law  governing  the 
service  of  process  in  civil  cases,  in  so  far  as  applicable. 

Sec.  7.  Any  person  who  shall  disobey  any  such  subpoena  or 
subpoena  duces  tecum,  issued  by  any  member  of  said  board,  or 
any  such  order  of  said  board,  or  who  shall  fail  or  refuse  to 
attend  as  by  such  subpoena  directed  or  to  testify  when  so 
required  to  do  so  by  any  member  of  said  board  under  the 
provisions  of  this  act,  shall  be  deemed  guilty  of  contempt,  and 
may  be  punished  therefor  by  said  board  under  the  provisions 
of  laws  applicable  to  the  district  courts  in  such  cases. 

Sec.  8.  Each  and  every  incorporated  railroad  company, 
ferry  company,  bridge  company,  turn-pike  or  toll  company 
doing  business  wholly  or  in  part  within  the  state  of  Texas, 
whether  incorporated  under  the  laws  of  this  state,  or  of  any 
other  state,  territory  or  foreign  country,  and  every  other  indi- 
vidual, company,  corporation  or  association  doing  business  of 
the  same  character  in  this  state,  shall,  in  addition  to  the  ad 
valorem  taxes  on  intangible  properties  which  are  now  or  which 
may  hereafter  be  imposed  upon  them,  respectively,  by  law, 
annually,  beginning  with  the  first  day  of  January,  A.  D.  1906, 
pay  a  tax  to  the  state  for  the  year  1906,  and  for  each  year 
thereafter  on  their  intangible  assets  and  property,  and  local 
taxes  thereon  to  the  counties  in  which  its  business  is  or  shall 
hereafter  be  carried  on,  which  additional  tax  shall  be  assessed 
and  levied  upon  such  intangible  assets  and  property  in  the 
manner  provided  in  this  act.    The  county  or  counties  in  which 


Intangible  Assets.  595 

such  taxes  are  to  be  paid,  and  the  manner  of  the  apportion- 
ment of  the  same,  shall  be  determined  in  accordance  with  the 
provisions  of  this  act. 

Sec.  9.  Between  the  second  day  of  January  and  the  first  day 
of  March  of  each  year,  every  individual,  company,  corporation 
and  association  embraced  within  the  provisions  of  the  next 
preceding  section  of  this  act,  or  coming  within  its  scope  and 
intent,  shall  make  out  and  deliyer  into  the  possession  of  said 
tax  commissioner  a  statement  containing  the  information  re- 
quired of  it  by  this  act,  which  statement  shall  be  duly  verified 
by  the  affidavit  of  the  individual,  or  one  of  the  officers  of  the 
company,  corporation,  or  association  in  whose  behalf  it  is  made, 
or  by  the  receiver,  assignee,  or  trustee  in  bankruptcy  thereof. 

Sec.  10.  Each  such  statement  shall  show  the  following 
items  and  particulars  as  the  same  stood  on  the  first  day  of 
January  next  preceding,  to-wit : 

(a)  The  name  of  the  individual,  company,  corporation,  or 
association  making  such  statement  and  the  character  of  its 
business. 

(b)  If  incorporated,  the  authority  by  which  it  was  incorpo- 
rated and  the  purposes  of  its  incorporation  as  expressed  in 
its  original  or  amended  articles  of  incorporation  or  articles  of 
association. 

(c)  The  locality  of  its  principal  office  and  the  amount  and 
kind  of  business  done  by  it  in  this  state  and  the  total  gross 
receipts  derived  from  its  business  within  this  state,  including 
a  due  proportion  of  its  interstate  business,  if  it  has  done  any 
business  of  that  character. 

(d)  Its  total  authorized  capital  stock  and  the  number  of 
shares  thereof  which  have  been  issued  and  are  outstanding 
and  the  par  face  value  of  each  such  share,  and  the  amount  of 
the  capital  actually  employed  in  the  aforesaid  business  within 
the  state. 

(e)  The  market  value  of  said  shares  of  stock,  or,  if  they 
have  no  market  value,  the  actual  value  thereof. 

(f)  The  assessed  value  and  also  the  true  value  of  all  the 
tangible  property  owned  by  such  individual  company,  corpo- 
ration or  association  in  each  county  in  this  state  and  the  total 
assessed  value  and  also  the  true  value  thereof. 


596  Taxation  in  Texas. 

(g)  The  assessed  value  and  also  the  true  value  of  the 
tangible  property  of  such  individual,  company,  corporation  or 
association,  outside  of  this  state,  and  not  specifically  used  in 
the  business  of  such  individual,  company,  corporation,  or  asso- 
ciation, same  to  be  given  by  states,  and  the  total  assessed  value 
and  also  the  true  value  of  the  same. 

(h)  A  statement  of  each  and  every  existing  lien,  mortgage 
or  other  charge,  upon  the  whole  or  any  part  of  the  property 
of  such  individual,  company,  corporation  or  association,  and 
of  the  property  thereby  charged  or  encumbered,  and  of  the 
amount  of  unpaid  debt  secured  by  each  such  mortgage,  lien 
or  charge,  and  of  the  interest  charged  thereon,  and  to  what 
extent  such  interest  has  been  paid,  and  of  the  true  and  fair 
market  value  of  every  such  debt. 

(i)  A  statement  of  the  gross  receipts  and  net  income  and 
earnings  for  the'  next  preceding  twelve  months,  including 
therein  all  interest  on  investments,  and  all  rents,  fruits,  reve- 
nues, and  receipts  from  every  source  whatsoever,  and  a  state- 
ment of  the  income  used  for  repairs,  and  of  the  amounts  used 
for  betterments,  and  the  amount  used  for  extensions  within 
that  period  of  time. 

(j)  Every  such  railroad  company  shall  also  show  in  each 
statement  made  by  it 

(1)  The  total  length  of  all  lines  of  said  company,  whether 
within  or  without  this  state. 

(2)  The  total  length  of  such  lines  as  are  within  the  state. 

(3)  The  length  of  its  lines  in  each  of  the  counties  in  this 
state  into  which  its  lines  extend. 

Sec.  11.  The  tax  commissioner  shall  receive  all  tax  state- 
ments rendered  to  him  under  the  provisions  of  this  act,  and 
shall  endorse  upon  each  the  date  of  receipt  thereof,  signing 
such  endorsement  officially.  Said  state  tax  board  shall  examine 
all  such  statements  as  soon  as  may  be  practicable  and  if  said 
board  shall  deem  any  of  them  insufficient  or  shall  believe  other 
or  further  information  necessary  or  proper,  said  board  shall 
at  once  demand  of  such  individual,  company,  or  corporation 
or  association,  such  additional  statement  and  such  further  in- 
formation as  it  may  think  proper. 

Sec.  12.  On  the  first  Monday  after  the  first  day  of  March 
of  each  year,  or  as  soon  thereafter  as  may  be  practicable,  said 


Intangible  Assets.  597 

tax  commissioner  shall  place  before  said  state  tax  board  all 
such  statements,  facts  and  information  as  may  have  come  into 
its  possession  or  knowledge  under  the  provisions  of  this  act. 
Sec.  13.  Said  state  tax  board  shall  thereupon  carefully  ex- 
amine and  consider  the  said  statements,  facts  and  information, 
and,  if  they  deem  it  advisable  to  do  so,  shall  hear  evidence, 
and  shall  require  such  individual,  company,  corporation  or 
association  to  make  such  additional  reports,  if  any,  as  such 
board  may  deem  proper,  and  shall  otherwise  secure  further 
additional  information  so  far  as  may  be  in  their  power,  to  show 
the  true  value  of  the  properties  aforesaid  and  the  true  value 
of  that  portion  of  every  such  property  which  is  situated  within 
the  state  and  within  the  respective  counties  thereof,  sufficient 
to  enable  said  board  to  make  the  preliminary  estimate  herein 
provided  for,  and  for  that  purpose  as  well  as  for  the  purpose 
of  carrying  into  effect  any  and  all  the  provisions  of  this  act, 
said  board  and  each  member  thereof,  may  require  and  compel, 
as  provided  in  this  act,  any  and  all  such  individuals,  compa- 
nies, corporations  and  associations  and  the  officers  and  agents 
thereof,  and  such  receivers,  trustees  in  bankruptcy,  assignees 
and  bailees,  to  appear  before  such  board  at  a  time  or  times 
to  be  designated  by  said  board,  with  any  and  all  such  books, 
papers,  documents  and  information  as  said  board  may  require 
and  to  submit  themselves  to  examination  by  said  board.  Upon 
consideration  of  such  statements  and  information  and  such 
additional  evidence,  books,  papers,  documents  and  information, 
if  any,  said  state  tax  board  shall  make  in  accordance  with  the 
provisions  of  this  act,  a  preliminary  estimate,  valuation  and  ap- 
portionment of  the  true  value  of  the  intangible  property  within 
this  state,  of  each  of  said  individuals,  companies,  corporations 
or  associations  and  shall,  on  or  before  the  31st  day  of  May 
of  each  year,  by  registered  mail,  notify  each  and  every  such 
individual,  company,  corporation  or  association,  receiver  or 
assignee,  trustee  in  bankruptcy,  or  other  person  holding  such 
property  for  the  benefit  of  creditors,  of  such  preliminary  esti- 
mate, valuation  and  apportionment,  and  the  amounts  thereof; 
and  all  such  individuals,  companies,  corporations,  associations, 
receivers,  assignees,  trustees  and  other  persons  shall  have  fif- 
teen days  from  the  time  of  mailing  such  notice  by  registered 
mail  to  appear  before  such  state  tax  board,  at  Austin,  in  Travis 


598  Taxation  in  Texas. 

County,  Texas,  on  a  date  to  be  fixed  in  such  notice,  and  request 
of  such  board  a  change  or  changes,  in  such  valuation  and  ap- 
portionment, or  either,  or  a  cancellation  of  such  valuation  and 
apportionment;  and  said  individuals,  companies,  corporations, 
associations,  receivers,  assignees,  trustees  and  other  persons 
may  appear  before  such  board,  in  person  or  by  attorney,  or  in 
person  and  by  attorney,  and  introduce  evidence.  Said  board,  may 
upon  its  own  motion,  or  upon  the  written  request  of  any  inter- 
ested party,  and  each  member  of  said  board  may  summon, 
swear,  and  examine  witnesses  under  the  same  rules  which 
govern  the  summoning,  swearing  and  examination  of  wit- 
nesses in  the  district  courts  of  this  state ;  and  such  board  shall 
have  the  same  jurisdiction,  authority  and  power,  under  the 
same  penalties  to  require  the  production  and  to  secure  the 
examination  of  any  and  all  books,  documents,  and  papers  of 
such  individuals,  companies,  corporations  and  associations,  re- 
ceivers, assignees,  trustees  and  other  persons  as  is  now  or  may 
hereafter  be  conferred  by  the  laws  of  this  state  upon  the 
railroad  commission  of  Texas.  Upon  or  after  such  hearing 
said  board  may  change  such  valuation  and  apportionment,  or 
either,  or  cancel  such  valuation  and  apportionment,  as  said 
board  may  deem  just  and  proper  in  the  premises. 

Sec.  14.  In  so  far  as  the  other  evidence  and  information 
adduced  before  said  state  tax  board  does  not  make  it  appear 
to  the  members  of  said  board  to  be  improper  or  unjust  to  do 
so,  said  board  shall,  in  fixing  the  true  value  of  the  entire  prop- 
erty of  such  individual,  company,  corporation  or  association 
embraced  within  the  provisions  of  this  act,  take  as  a  basis 
therefor,  the  aggregate  market  or  true  value  of  all  its  shares 
of  stock,  adding  thereto  the  aggregate  market  or  true  value 
of  all  indebtedness  secured  by  any  mortgage,  lien  or  other 
charge  upon  its  property  or  assets,  and  the  sum  so  produced 
shall  be  deemed  and  treated  as  the  true  value  of  said  entire 
property.  And  where  the  individual,  company,  corporation 
or  association  does  business  and  has  property,  both  within 
this  state  and  outside  of  it,  in  ascertaining  the  true  value  of 
its  property  within  this  state,  said  tax  board  shall  next  ascer- 
tain from  said  statements,  reports  and  evidence,  if  any,  or 
otherwise  the  true  value,  in  the  locality  where  the  same  is  situ- 
ated, of  each  such  several  pieces  of  real  estate  situated  outside 


Intangible  Assets.  599 

of  this  state,  and  of  its  other  properties,  if  any,  outside  thereof, 
and  not  specifically  used  in  the  business  of  said  individual,  com- 
pany, corporation  or  association,  and  the  aggregate  of  said 
value  shall  be  deducted  from  the  gross  value  of  the  property 
as  above  ascertained ;  and  the  result  of  said  deductions  and  the 
sum  or  value  thereby  obtained  shall  be  deemed  and  treated  as 
the  true  value  of  all  property  of  such  individual,  company, 
corporation  or  association  in  actual  use  in  its  business. 

Said  tax  board  shall  then  fix  the  true  value  of  the  property 
of  such  individual,  company,  corporation  or  association  w^ithin 
this  state,  using  as  a  basis  and  being  guided  so  far  as  it  shall 
not  believe  it  unjust  to  do  so,  by  the  proportion  which  it  finds 
to  exist  betv^een  the  total  lines  or  total  receipts  v^ithin  this 
state  and  outside  of  it,  and  lines  controlled  or  operated,  or 
the  receipts  obtained,  entirely  v^ithin  this  state,-  so  that  there 
shall  be  apportioned  to  this  state,  as  the  true  value  of  the 
property  within  its  borders  of  each  individual,  company,  cor- 
poration and  association  doing  business  within  and  outside 
of  its  limits,  such  proportion  of  the  true  value  of  all  the  prop- 
erty of  such  individual,  company,  corporation  or  association 
which  is  specifically  used  in  its  business,  as  is  borne  by  its 
total  lines  or  total  receipts  within  this  state  when  compared 
with  the  total  lines  or  total  receipts  both  inside  and  outside 
of  the  state  of  Texas.  From  the  entire  value  of  the  property 
within  this  state,  when  ascertained  as  directed  by  this  act, 
said  state  tax  board  shall  deduct  the  true  value  of  all  the  tan- 
gible property  of  such  individual,  company,  corporation  or  as- 
sociation within  this  state,  as  so  ascertained  by  said  state  tax 
board,  and  the  residue  and  remainder  of  value  shall  be  by  said 
state  tax  board  fixed,  determined  and  declared  as  the  true  value 
of  the  intangible  properties  owned  and  held  by  such  individ- 
ual, company,  corporation  or  association  within  this  state. 
Said  state  tax  board  shall  apportion  the  sum  of  the  said  total 
taxable  values  within  this  state  to  the  counties  in  which  such 
individual,  company,  corporation  or  association  does  business, 
in  proportion  to  the  amount  of  business  done  in  and  the  receipts 
derived  from  each  such  county,  except  that  in  case  of  a  rail- 
road company,  the  apportionment  to  each  county  shall  be  in 
proportion  to  the  line  or  lines  of  such  individual,  company, 
corporation  or  association  therein. 


600  Taxation  in  Texas. 

In  apportioning  the  value  of  the  aforesaid  properties  said 
state  tax  board  shall  have  the  right  and  it  shall  be  its  duty  to 
make  use  of  and  consider  all  evidence  which  may  be  put  before 
it  and  all  material  facts  at  its  command,  and  if  it  shall  believe 
that  some  method  of  calculation  other  than  that  specifically 
prescribed  in  this  act  is  necessary  in  order  to  produce  just  and 
lawful  results,  said  board  shall  follow  that  method  of  calcula- 
tion which  it  believes  best  calculated,  under  all  circumstances, 
to  bring  about  a  just,  fair,  equitable  and  lawful  valuation  and 
apportionment  of  such  property. 

Sec.  15.  Whenever  any  person,  or  association  of  persons, 
not  being  a  corporation,  nor  having  a  capital  stock,  shall  en- 
gage in  this  state  in  any  character  of  business  embraced  within 
the  provisions  of  section  8,  of  this  act,  then  the  capital  and 
property,  or  the  certificate  or  other  evidences  of  the  rights  or 
interests  of  such  person  or  association  of  persons  engaged  in 
such  business  shall  be  deemed  and  treated  as  the  capital  stock 
of  such  person  or  association  of  persons,  for  the  purpose  of 
taxation,  and  for  all  other  purposes,  under  this  act,  and  shall 
be  estimated  and  valued  and  the  intangible  property  of  such 
person  or  association  of  persons,  when  ascertained  shall  be 
apportioned,  distributed,  assessed  and  taxed  under  the  provi- 
sions of  this  act,  in  like  manner  as  if  such  person  or  associa- 
tion of  persons  were  a  corporation ;  and  each  such  person  and 
association  of  persons  shall,  annually,  within  the  time  and  in 
the  manner  provided  in  this  act,  make  the  statements  and  re- 
ports and  furnish  and  supply  the  information  required  by  this 
act  of  the  aforesaid  companies,  corporations,  and  associations, 
and  shall  be  subject  in  like  manner  as  the  aforesaid  companies, 
corporations  and  associations,  to  all  the  terms  and  provisions 
of  this  act,  including  penalties. 

Sec.  16.  Thereafter,  and  not  later  than  the  20th  day  of  June 
of  each  year,  said  state  tax  board  shall  make,  in  accordance 
with  the  provisions  and  requirements  of  this  act,  a  final  valua- 
tion and  apportionment  of  the  intangible  assets  aforesaid,  of 
each  and  every  such  individual,  company,  corporation,  and 
association,  and  shall  as  soon  after  such  20th  day  of  June  as 
practicable,  certify  to  the  tax  assessor  of  each  county  in  this 
state  to  which  any  portion  of  such  intangible  assets  of  any. 
such  individual,  company,  corporation  or  association  is  found 


Intangible  Assets.  601 

by  said  board  to  be  apportionable  for  taxation  and  so  appor- 
tioned, the  amount  thereof,  as  fixed,  determined  and  declared 
by  said  board,  and  thereunto  apportioned  by  Said  board,  to- 
gether with  the  name  and  place  of  residence  or  place  of  busi- 
ness of  the  owner  or  owners  of  the  property  embraced  in  such 
valuation  and  apportionment ;  provided,  that  such  final  valua- 
tion and  apportionment  of  such  intangible  assets  properly 
apportionable  and  apportioned  by  such  state  tax  board  to 
any  unorganized  county,  shall  be  by  said  board  so  certified 
to  the  tax  collector  of  the  county  to  which  such  unorganized 
county  is  attached  for  judicial  purposes.  It  shall  be  the  duty 
of  the  tax  assessor  of  such  county  upon  receiving  such  certifi- 
cate or  certificates  of  said  state  tax  board,  to  place,  set  down 
and  list,  upon  forms  prescribed  by  the  comptroller  of  public 
accounts  for,  such  purpose,  upon  the  tax  rolls  of  his  county, 
and  of  each  unorganized  county  which  is  attached  to  his  coun- 
ty for  judicial  purposes,  as  the  case  may  be,  any  and  all  such 
intangible  assets,  at  the  value  so  fixed,  determined,  declared  and 
certified  by  said  state  tax  board.  Such  county  tax  assessor 
shall  extend  and  prorate  upon  said  rolls  the  state  and  county 
taxes  upon  all  such  intangible  assets  in  the  same  manner  as 
taxes  upon  other  property  are  extended  and  prorated.  Said 
assessment,  valuation  and  apportionment  of  such  intangible 
assets  so  fixed,  determined,  declared  and  certified  by  such 
state  tax  board  shall  not  be  subject  to  review,  modification 
or  change  by  the  tax  assessor  of  such  county,  nor  by  the  board 
of  equalization  of  such  county ;  and  the  state  and  county  taxes 
thereon  shall  be  collected  by  the  tax  collector  of  such  county 
and  accounted  for  by  him  in  the  same  manner  and  under  the 
same  penalties  as  taxes  upon  other  property. 

All  state  and  county  ad  valorem  taxes  upon  all  tangible 
property  in  this  state  belonging  to  any  individual,  company, 
corporation  or  association  embraced  by  this  act,  shall  be  as- 
sessed under  its  provisions  and  not  otherwise;  but  ad  valorem 
taxes  upon  all  other  property  of  any  and  all  such  individuals, 
companies,  corporations  and  associations  shall  be  assessed 
as  is  now  or  as  may  hereafter  be  provided  by  law. 

Sec.  17.  Any  county  tax  assessor  who  shall  violate  or  in 
any  respect  fail  to  comply  with  any  of  the  provisions  of  this 
act,  and  any  member  of  any  board  of  equalization  and  any 


602  Taxation  in  Texas. 

county  tax  assessor  who  shall  modify  or  change  or  vote  to 
modify  or  change  in  any  manner  whatsoever  the  fmding,  val- 
uation or  apportionment  of  any  of  said  intangible  assets  as  so 
fixed,  determined,  declared  and  certified  by  said  state  tax 
board,  shall  be  deemed  guilty  of  a  misdemeanor  and  upon  con- 
viction thereof  shall  be  fined  not  less  than  one  hundred  nor 
more  than  one  thousand  dollars. 

Sec.  18.  Every  individual,  company,  corporation  and  asso- 
ciation embraced  within  the  provisions  of  this  act  which  shall 
fail  to  make  any  return,  statement  and  report  provided  for  by 
this  act,  within  fifteen  days  after  the  day  on  which  it  is  re- 
quired by  this  act  to  be  made,  or  to  make  any  additional  report 
or  statement,  or  to  furnish  any  additional  information  which 
may  be  required  by  said  state  tax  board,  or  any  member  there- 
of, under  the  provisions  of  this  act,  within  fifteen  days  after 
the  mailing  of  a  registered  notice  or  demand  therefor,  in  writ- 
ing, signed  by  any  member  of  said  board  and  addressed  to  such 
individual,  company  or  corporation  or  association,  at  its  proper 
postoffice  address  or  principal  place  of  business,  shall  forfeit 
and  pay  to  the  state  of  Texas,  not  more  than  five  thousand 
dollars,  which  amount  may  be  recovered  by  suit  which  may  be 
brought  therefor  in  behalf  of  the  state  by  the  attorney-general ; 
and  venue  of  such  suits  is  hereby  fixed  within  the  county  of 
Travis,  in  said  state,  and  the  courts  of  said  .county  are  hereby 
vested  with  jurisdiction  of  said  causes. 

Sec.  19.  If  the  property  of  any  such  individual,  company, 
corporation  or  association  shall  be  in  the  hands  of  any  receiver, 
assignee,  trustee  in  bankruptcy  or  other  person  holding  under 
any  court,  or  for  the  benefit  of  any  creditor  or  creditors,  then 
the  statements,  reports,  information,  books  and  papers  afore- 
said shall  be  furnished  by  such  receiver,  assignee,  trustee,  or 
other  person,  by  some  officer  or  agent  acting  under  him,  in  the 
same  manner  and  to  the  same  extent  as  is  hereinbefore  pro- 
vided in  cases  where  an  individual,  company  or  association  is 
in  possession ;  and  as  to  such  receiver,  assignee,  trustee  in 
bankruptcy  or  other  person,  officer  or  agent,  all  of  the  provi- 
sions of  this  act,  in  so  far  as  they  are  applicable,  shall  apply 
and  govern. 


Intangible  Assets.  603 

Sec.  20.  This  act  shall  not  in  any  manner  impair  or  effect 
any  finding,  judgment,  proceeding,  assessment,  apportionment 
or  order  of  the  said  state  tax  board  under  any  of  the  provisions 
of  said  Chapter  146  of  the  General  Laws  of  the  Twenty-ninth 
Legislature  which  shall  have  been  made,  found,  had,  entered 
or  begun  when  this  act  shall  take  effect,  or  any  vested  or  in- 
choate right  or  any  remedy  under  said  Chapter  146;  but  any 
and  all  findings,  judgments,  proceedings,  assessments,  appor- 
tionments, reports  and  orders  of  the  state  tax  board  heretofore 
made,  found,  had,  entered  or  begun  under  the  provisions  of 
said  Chapter  146,  prior  to  the  taking  effect  of  this  act,  shall 
shall  remain  valid  and  the  same  are  hereby  expressly  continued 
in  full  force  and  effect  after  this  act  shall  take  effect,  to  all 
intents  and  purposes,  the  same  as  heretofore;  and  any  and  all 
such  findings,  judgments,  proceedings,  assessments,  apportion- 
ments, reports  and  orders  of  such  state  tax  board  shall  be  car- 
ried out  and  executed  after  this  act  shall  take  effect,  in  the 
same  manner  and  to  the  same  extent,  and  with  the  same  force 
and  effect  as  though  made  and  done  under  the  provisions  of 
this  act. 

Sec.  21.  Whenever  any  individual,  company,  corporation 
or  association  embraced  within  the  preceding  section  8  of  this 
act  shall  pay  in  full,  and  within  the  year  for  which  same  may 
be  assessed,  all  its  state  and  county  taxes  for  that  year  upon 
all  its  intangible  properties  as  determined,  fixed  and  assessed 
under  the  provisions  of  this  act,  such  individual,  company,  cor- 
poration or  association  shall  thereby  be  relieved  from  liability 
for  and  from  payment  of  any  and  all  occupation  taxes  meas- 
ured by  gross  receipts  for  or  accruing  during  that  year  under 
any  law  of  this  state ;  but  no  such  individual,  company,  corpo- 
ration or  association  shall  be  entitled  to  any  such  exemption 
except  for  the  year  for  which  it  shall,  before  same  shall  become 
delinquent,  pay  all  its  aforesaid  intangible  state  and  county 
taxes  for  that  year. 

Sec.  22.  To  carry  the  provisions  of  this  act  into  effect,  there 
is  hereby  appropriated  out  of  any  money  in  the  state  treasury 
not  heretofore  appropriated,  to  be  expended  within  two  years, 
and  to  be  paid  out  upon  itemized  accounts  approved  by  the 
Governor,  but  not  otherwise,  the  following  amounts,  viz. : 


604  Taxation  in  Texas. 

For  salary  of  secretary  and  stenographer  for  not  more  than 
four  months  in  each  year,  eight  hundred  dollars. 

Sec.  23.  Section  12  of  said  Chapter  146  of  the  General  Laws 
of  the  Twenty-ninth  Legislature  is  hereby  expressly  repealed. 
Acts  of  Thirtieth  Legislature,  pp.  469  to  478. 


CHAPTER  LIII.      \ 

FRANCHISE  TAX. 

Sec.  Sec. 

935.  Act  of  1905  amending  articles       939.  Failure  to  pay  does  not  for- 

of  statute  in  regard  to  fran-  feit  charter. 

chlse  tax  of  corporations  do-  940.  Corporation  proper  defendant. 

ing  business  in  Texas.  941.  "Wharf  privileges. 

936.  An  Act  to  define  the  method  942.  Double  taxation. 

of  computing  the  franchise       943.  Street  railroad. 

tax.  944.  Delinquent  may  be  placed  in 

937.  Franchise      of      corporation  hands  of  receiver. 

property.  945.  Contract  over  foreign  corpo- 

938.  Insufficient  description,  rations. 

946.  Act  of  the  30th  Legislature. 

§  935.  Act  of  1905  amending  articles  of  statute  in  regard  to 
franchise  tax  of  corporations  doing  business  in 
Texas. 

Section  1.  Be  it  enacted  by  the  legislature  of  the  state  of 
Texas :  That  Articles  5243i  and  5243j  of  an  act  entitled  "An  act 
to  amend  Articles  5243i,  5243 j,  and  5243k  of  an  act  entitled  'An 
act  to  amend  Articles  5243e,  5243i,  5243j  and  5243k,  of  Chapter 
9,  Title  104,  of  the  Revised  Civil  Statutes,  relating  to  the  taxation 
of  insurance,  telephone,  sleeping  and  dining  car  and  other  cor- 
porations, and  to  provide  for  forfeiting  the  charters  of  domestic 
corporations  and  permits  of  foreign  corporations  to  do  business  in 
this  state,  for  failure  to  pay  the  franchise  tax  levied  by  this  act, 
and  to  define  and  prescribe  the  notice  to  be  given  to  said  cor- 
porations previous  to  said  forfeiture,  and  to  provide  adequate 
penalties  for  a  violation  of  this  act,'  passed  at  the  present  session, 
and  approved  April  30,  1897,"  said  act  being  Chapter  120  of  the 
General  Laws  of  the  State  of  Texas,  passed  at  the  Regular  Ses- 
sion of  the  25th  Legislature,  be  amended  so  as  to  hereafter  read 
as  follows: 

Art.  5243i.  Each  and  every  private  domestic  corporation  here- 
tofore chartered,  or  that  may  hereafter  be  chartered,  under  the 
laws  of  this  state  shall,  on  or  before  the  first  day  of  May  of  each 
year,  pay  to  the  secretary  of  state  the  following  franchise  tax  for 


606  Taxation  in  Texas. 

the  year  following,  to-wit :  One  dollar  on  each  two  thousand  dol- 
lars or  fractional  part  thereof,  of  the  authorized  capital  stock  of 
the  corporation,  up  to  and  including  one  hundred  thousand  dol- 
lars, and  one  dollar  on  each  ten  thousand  dollars  or  fractional  part 
thereof  of  such  stock  in  excess  of  one  hundred  thousand  dollars 
and  up  to  and  including  one  million  dollars;  and  one  dollar  on 
each  twenty  thousand  dollars  or  fractional  part  thereof  of  such 
stock  in  excess  of  one  million  dollars,  and  up  to  and  including 
ten  million  dollars ;  and  one  dollar  on  each  fifty  thousand  dollars 
or  fractional  part  thereof  of  such  stock  in  excess  of  ten  million 
dollars ;  but  such  tax  shall  not  be  less  than  ten  dollars  in  any 
case.  And  each  and  every  foreign  corporation  heretofore  au- 
thorized, or  that  may  hereafter  be  authorized,  to  do  business  in 
this  state,  shall,  on  or  before  the  first  day  of  May  of  each  year, 
pay  to  the  secretary  of  state  the  following  franchise  tax  for  the 
year  following,  to-wit :  One  dollar  on  each  one  thousand  dollars 
or  fractional  part  thereof  of  the  authorized  capital  stock  of  the 
corporation  up  to  and  including  one  hundred  thousand  dollars ; 
and  one  dollar  on  each  five  thousand  dollars  or  fractional  part 
thereof  of  such  stock  in  excess  of  one  hundred  thousand  dollars, 
and  np  to  and  including  one  million  dollars ;  and  one  dollar  on 
each  twenty  thousand  dollars  or  fractional  part  thereof  of  such 
stock  in  excess  of  one  million  dollars,  and  up  to  and  including 
ten  million  dollars ;  and  one  dollar  on  each  fifty  thousand  dollars 
of  such  stock  in  excess  of  ten  million  dollars ;  but  such  tax  shall 
.not  be  less  than  twenty-five  dollars  in  any  case.  Whenever  a 
corporation  is  chartered  or  authorized  to  do  business  in  this 
state,  it  shall  pay  the  proportional  part  of  such  annual  franchise 
tax  corresponding  to  the  length  of  time  before  the  next  following 
first  day  of  May,  and  if  such  tax  be  not  then  paid,  no  such  char- 
ter shall  be  filed,  or  permit  issued.  The  franchise  tax  herein  pro- 
vided for  shall  be  computed  upon  the  basis  of  the  total  amount 
of  the  capital  stock  issued  and  outstanding,  plus  the  surplus  and 
undivided  profits  of  the  corporations,  instead  of  upon  the  author- 
ized capital  stock,  whenever  such  total  amount  is  different  from 
the  authorized  capital  stock.  Affidavit  of  the  head  of  the  corpora- 
tion and  secretary  thereof  to  these  facts  may  be  filed  with  the 
secretary  of  state,  or  may  be  required  whenever  in  his  judgment 
the  same  is  necessary  to  protect  the  interests  of  the  state.  Any 
corporation,  either  domestic  or  foreign,  which  shall  fail  to  pay 


Franchise  Tax.  607 

the  tax  provided  for  in  this  article  at  the  time  specified  herein 
shall  immediately  become  liable  to  a  penalty  of  twenty-five  per 
cent  on  the  amount  of  the  tax  due  by  it,  and  if  the  amount  of  said 
tax  and  penalty  be  not  paid  in  full  on  or  before  the  first  day  of 
July  thereafter,  such  corporation  shall,  for  such  default,  forfeit 
its  right  to  do  business  in  the  state,  which  forfeiture  shall  be  con- 
summated without  judicial  ascertainment,  by  the  secretary  of 
state  entering  upon  the  margin  of  the  ledger  kept  in  his  ofiice 
relating  to  such  corporation  the  word  "Forfeited,"  giving  the 
date  of  such  forfeiture;  and  any  corporation  whose  right  to  do 
business  may  be  thus  forfeited  shall  be  denied  the  right  to  sue 
or  defend  in  any  of  the  courts  of  this  state,  and  in  any  suit  against 
such  corporation  on  a  cause  of  action  arising  before  such  for- 
feiture, no  affirmative  relief  may  be  granted  to  such  corporation 
unless  its  right  to  do  business  is  revived,  as  provided  in  Article 
5243 j.  All  insurance,  surety,  guaranty  and  fidelity  companies, 
all  transportation  companies,  and  all  sleeping,  palace  and  dining 
car  companies  now  paying  an  annual  income  tax  on  their  gross 
receipts  in  this  state  shall  be  exempted  from  the  franchise  tax 
above  imposed. 

Art.  5243 j.  The  secretary  of  state  shall,  during  the  month  of 
May  of  each  year,  notify  each  private  domestic  and  foreign  cor- 
poration subject  to  a  franchise  tax  under  any  law  of  this  state, 
which  has  failed  to  pay  such  tax  on  or  before  the  first  day  of 
May,  that  unless  such  defaulted  tax,  together  with  the  penalty 
thereon,  be  paid  on  or  before  the  first  day  of  July  following,  its 
right  to  do  business  in  the  state  will  be  forfeited  without  judicial 
ascertainment.  Such  notice  may  be  either  written  or  printed, 
and  shall  be  mailed  to  the  postoffice  named  in  its  articles  of  in- 
corporation as  the  principal  place  of  business  of  such  corporation, 
or  to  any  other  known  place  of  business  of  such  corporation, 
addressed  in  its  corporate  name,  and  a  record  of  the  date  of  mail- 
ing shall  be  kept  by  the  secretary  of  state.  Such  notice  and  the 
said  record  thereof  shall  constitute  legal  and  sufficient  notice 
for  all  the  purposes  of  this  act.  Any  corporation  whose  right  to 
do  business  may  have  been  thus  forfeited,  shall  be  relieved  from 
such  forfeiture  by  paying  to  the  secretary  of  state,  at  any  time 
within  six  months  after  its  forfeiture,  the  full  amount  of  the 
franchise  tax  and  penalty  due  by  it,  together  with  an  additional 
amount  of  five  per  cent  of  such  tax  (in  no  case  to  be  less  than 


608  Taxation  in  Texas. 

five  dollars)  for  each  month  or  fractional  part  of  a  month  which 
shall  elapse  after  such  forfeiture.  When  such  tax  and  all  such 
penalties  are  fully  paid  to  the  secretary  of  state,  he  shall  revive 
and  reinstate  the  right  of  the  corporation  to  do  business,  by  can- 
celing the  word  "Forfeited"  from  his  ledger,  and  substituting 
therefor  the  word  "Revived,"  giving  the  date  of  such  revival. 
But  nothing  in  this  act  shall  be  construed  to  repeal  any  law  pre- 
scribing fees  to  be  collected  by  the  secretary  of  state,  provided 
the  provisions  of  this  act  shall  not  apply  to  corporations  having 
no  capital  stock  organized  for  the  exclusive  purpose  of  promoting 
the  public  interest  of  any  city  or  town.    Acts  1905,  pp.  21,  22,  23. 

§  936.  An  act  to  define  the  method  of  computing  the  fran- 
chise tax. 
That  the  annual  franchise  tax,  payable  to  the  state  by  private 
domestic  corporations  heretofore  chartered  or  that  may  hereafter 
be  chartered  under  the  laws  of  this  state,  and  foreign  corporations 
heretofore  authorized  or  that  may  hereafter  be  authorized  to  do 
business  in  this  state,  shall  be  computed  upon  the  basis  of  the 
authorized  capital  stock  of  the  corporation,  as  stated  in  its  articles 
of  incorporation,  or  certified  copy  thereof,  unless  the  aggregate 
amount  of  the  capital  stock  issued,  plus  the  surplus  and  undivided 
profits  of  the  corporation  exceeds  the  authorized  capital  stock,  in 
which  case  the  franchise  tax  shall  be  computed  upon  the  basis 
of  such  aggregate  amount.  For  the  purpose  of  making  such 
computations,  the  secretary  of  state  is  authorized  to  require  affi- 
davits of  the  president,  secretary,  treasurer  and  other  officers  of 
any  such  corporation  to  show  the  amount  of  its  capital  stock 
issued  and  its  surplus  and  undivided  profits,  whenever  in  his  judg- 
ment the  same  may  be  necessary,  or  he  may  ascertain  such  facts 
from  other  sources.  Should  an  officer  of  any  corporation  sub- 
ject to  the  payment  of  an  annual  franchise  tax,  fail  or  refuse  to 
give  under  oath  full  and  accurate  information  of  the  amount  of 
the  capital  stock  issued  by  the  corporation,  or  of  the  amount  of 
its  surplus  or  undivided  profits,  when  required  so  to  do  by  the 
secretary  of  state,  he  shall  be  deemed  guilty  of  a  misdemeanor, 
and  upon  conviction  shall  be  fined  in  any  sum  not  more  than  five 
hundred  dollars.    Acts  1905,  p.  100. 


Franchise  Tax.  609 

§  937.     Franchise  of  corporation j)roperty. 

The  franchises  of  a  corporation,  exercised  and  enjoyed  by  it 
in  a  city,  are  property,  within  the  provision  of  the  city's  charter 
requiring  a  tax  on  all  property  in  it.  Soiithzwstern  Telegraph  & 
Telephone  Co.  v.  City  of  San  Antonio,  7Z  S.  W.  859,  32  Tex.  Civ. 
App.  101. 

§  938.     Insufficient  description. 

The  description  on  the  assessment  roll  of  a  city,  "the  *  *  =•< 
Company  franchise,"  is  not  sufficient.  Southive stern  Telegraph 
&  Telephone  Co.  v.  City  of  San  Antonio,  73  S.  W.  859,  32  Tex. 
Civ.  App.  101. 

§  939.     Failure  to  pay  does  not  forfeit  charter. 

The  failure  of  a  corporation  to  pay  the  franchise  tax  imposed 
by  Sayles  Ann.  Civ.  St.  1897,  Art.  5243i,  does  not  authorize  the 
secretary  of  state  to  declare  a  forfeiture  of  its  franchise,  the  prop- 
er remedy  for  such  forfeiture  being  an  action  by  the  state  for 
that  purpose.  Rippstein  v.  Haynes  Medina  Valley  Ry.  Co.,  85 
S.  W.  314. 

§  940.     Corporation  proper  defendant. 

Until  a  corporation  has  been  dissolved  by  proceedings  for  that 
purpose,  the  corporation  is  the  only  proper  party  to  defend  an 
action  brought  against  it,  though  it  has  failed  to  pay  its  franchise 
tax,  and  its  directors  have  no  right  to  intervene  as  defendants. 
Rippstein  v.  Haynes  Medina  Valley  Ry.  Co.,  85  S-.  W.  314. 

§  941.     Wharf  privileges. 

Under  Gen.  Laws  Tex.  1874,  p.  214,  requiring  that  "wharf 
privileges,"  as  well  as  wharves,  shall  be  taxed,  such  privileges  are 
to  be  taxed  as  a  thing  separate  and  distinct  from  the  real  and 
personal  property  with  which  the  business  of  a  wharfinger  ,  is 
conducted.  Galveston  County  v.  Galveston  Wharf  Co.,  10  S.  W. 
587,  72  Tex.  557. 

§  942.     Double  taxation. 

Where  a  telegraph  company  has  paid  taxes  on  its  real  and  per- 
sonal property  a  taxation  of  its  franchise  is  double  taxation.  5. 
W.  Tel.  &  Tel.  Co.  v.  Meerscheidt,  65  S.  W.  381. 


39 


610  Taxation  in  Texas. 

§  943.     Street  railroad. 

The  franchises  of  a  street  railroad  appurtenant  to  the  use  of  its 
property  held  subject  to  a  separate  tax.  Dallas  St.  Ry.  Co.  v.  City 
of  Dallas,  66  S.  W.  835,  95  Tex.  268. 

§  944.     Delinquent  may  be  placed  in  hands  of  receiver. 

Under  Rev.  St.  1895,  Art.  1465,  which  provides  that  a  receiver 
may  be  appointed  for  a  corporation  which  has  forfeited  its  cor- 
porate rights,  the  court  was  warranted  in  placing  in  a  receiver's 
hands  the  property  of  a  corporation  which  had  failed  to  pay  its 
franchise  tax.    Ripy  v.  Redwater  Lumber  Co.,  106  S.  W.  474. 

§  945.     Contract  over  foreign  corporations. 

The  fact  that  a  foreign  corporation  has  obtained  a  permit  to 
do  business  in  the  state  under  an  existing  statute,  and  has  paid 
the  franchise  tax  required  thereby,  does  not  preclude  the  state 
from  imposing  a  further  franchise  tax  and  an  additional  burden, 
and  such  a  change  does  not  violate  the  constitution  forbidding 
the  impairment  of  obligations  of  contracts,  especially  in  view  of 
Const.,  Art.  8,  Sec.  4,  providing  that  the  power  to  tax  corpora- 
tions shall' not  be  suspended  by  contract. 

A  state  has  the  absolute  right  to  exclude  or  permit  a  foreign 
corporation  from  doing  business  within  its  limits,  and  may  im- 
pose such  conditions  as  it  may  see  fit  in  granting  permission. 

A  state  may  impose  on  a  foreign  corporation  a  franchise  tax 
for  the  privilege  of  doing  business  within  the  state,  and  such  tax 
is  a  mere  license  or  privilege  tax,  and  is  not  a  property  tax, 
though  the  amount  of  it  is  determined  by  the  capital  stock  of 
the  corporation. 

A  foreign  corporation  paying  a  franchise  tax  for  the  privi- 
lege of  doing  business  within  the  state,  under  protest  that  the 
tax  is  illegal  because  of  the  unconstitutionality  of  the  statute 
imposing  it,  is  not  entitled  to  recover  the  same  on  the  ground 
that  it  was  only  doing  an  interstate  business,  and  was  not  subject 
to  the  franchise  tax,  since  the  payment  of  the  tax  in  response  to 
the  demand  under  the  statute  is  a  voluntary  payment. 

Acts  29th  Leg.,  1905,  pp.  21,  100,  Chaps.  19,  72,  imposing  a 
franchise  tax  on  domestic  and  foreign  corporations,  impose  a 
like  tax  on  all  foreign  corporations,  and  are  not  invalid  as  dis- 
criminating in  favor  of  domestic  corporations  subject  to  a  less 


Franchise  Tax.  611 

tax ;  the  classification  being  based  on  legitimate  distinctions  and 
the  burden  being  equal  within  the  class.  Gaar,  Scott  &  Co.  v. 
Shannon,  115  S.  W.  361. 

§  946.     Act  of  the  30th  legislature. 

Section  1.  Except  as  herein  provided  each  and  every  private 
domestic  corporation  heretofore  chartered,  or  that  may  hereafter 
be  chartered  under  the  laws  of  this  state,  shall,  on  or  before  the 
first  day  of  May  of  each  year,  pay  in  advance  to  the  secretary  of 
state  a  franchise  tax  for  the  year  following,  which  shall  be  com- 
puted as  follows,  viz :  Fifty  cents  on  each  one  thousand  dollars, 
or  fractional  part  thereof,  of  the  authorized  capital  stock  of  such 
corporation,  unless  the  total  amount  of  capital  stock  of  such  cor- 
poration issued  and  outstanding,  plus  its  surplus  and  undivided 
profits,  shall  exceed  its  authorized  capital  stock,  and  in  that  event 
the  franchise  tax  of  such  corporation  for  the  year  following  shall 
be  fifty  cents  on  each  one  thousand  dollars  of  capital  stock  such 
corporations  issued  and  outstanding,  plus  its  surplus  and  undi- 
vided profits ;  provided,  that  such  franchise  tax  shall  not  in  any 
case  be  less  than  ten  dollars.  Provided,  that  where  the  author- 
ized capital  exceeds  one  million  dollars  such  franchise  tax  shall 
be  fifty  cents  for  each  one  thousand  dollars  up  to  and  including 
one  million  dollars  and  for  each  additional  one  thousand  dollars, 
in  excess  of  one  million  dollars,  it  shall  be  twenty-five  cents. 

Sec.  2.  Except  as  -herein  provided,  each  and  every  foreign 
corporation  authorized  or  that  may  hereafter  be  authorized  to 
do  business  in  this  state,  shall  on  or  before  the  first  day  of  May 
of  each  year  pay  in  advance  to  the  secretary  of  state  a  franchise 
tax  for  the  year  following,  which  shall  be  computed  as  follows, 
viz :  One  dollar  on  each  one  thousand  dollars  or  fractional  part 
thereof  of  the  authorized  capital  stock  of  the  corporation  up  to 
and  including  one  hundred  thousand  dollars ;  and  two  dollars  on 
each  five  thousand  dollars  or  fractional  part  thereof  of  such  stock 
in  excess  of  one  hundred  thousand  dollars  and  up  to  and  includ- 
ing one  million  dollars ;  and  two  dollars  on  each  twenty  thousand 
dollars  or  fractional  part  thereof  of  such  stock  in  excess  of  one 
million  dollars,  and  up  to  and  including  ten  million  dollars,  and 
two  dollars  on  each  fifty  thousand  dollars  of  such  stock  in  excess 
of  ten  million  dollars ;  unless  the  total  amount  of  the  capital  stock 
of  such  corporation  issued  and  outstanding,  plus  its  surplus  and 


612  Taxation  in  Texas.  ♦ 

undivided  profits,  shall  exceed  its  authorized  capital  stock,  and  in 
that  event  the  franchise  tax  of  such  corporation  for  the  year  fol- 
lowing shall  be :  two  dollars  on  each  one  thousand  dollars  or  frac- 
tional part  thereof,  of  the  authorized  capital  stock  of  such  cor- 
poration, issued  and  outstanding,  plus  its  surplus  and  undivided 
profits,  up  to  and  including  one  hundred  thousand  dollars;  and 
two  dollars  on  each  five  thousand  dollars,  or  fractional  part 
thereof  of  such  stock,  surplus  and  undivided  profits  in  excess  of 
one  hundred  thousand  dollars,  and  up  to  and  including  one  mil- 
lion dollars ;  and  two  dollars  on  each  twenty  thousand  dollars, 
or  fractional  part  thereof  of  such  stock,  surplus  and  undivided 
profits  in  excess  of  one  million  dollars,  and  up  to  and  including 
ten  million  dollars ;  and  two  dollars  on  each  fifty  thousand  dol- 
lars of  such  stock,  surplus  and  undivided  profits  in  excess  of  ten 
million  dollars ;  provided  that  such  franchise  tax  shall  not  in  any 
case  be  less  than  twenty-five  dollars. 

Sec.  3.  Whenever  a  private  domestic  corporation  is  chartered 
in  this  state,  and  whenever  a  foreign  corporation  is  authorized  to 
do  business  in  this  state,  and  such  corporation  shall  be  required 
to  pay  in  advance  to  the  secretary  of  state,  as  its  franchise  tax 
from  that  time  down  to  and  including  the  30th  day  of  April  next 
following,  only  such  proportionate  part  of  its  annual  franchise 
tax,  as  herein  above  prescribed,  as  the  period  of  time  between 
the  date  of  filing  of  its  articles  of  incorporation  or  the  issuance 
of  its  permit  to  do  business,  as  the  case  may  be,  and  on  the  first 
day  of  May  next  following,  bears  to  a  calendar  year.  Nothing 
in  this  act  shall  affect  the  amount  of  the  franchise  tax  to  be  paid 
by  any  corporation  for  the  period  of  time  ending  with  April 
30,  1907,  excepting  only  such  domestic  corporations  as  may  be 
chartered  after  this  act  shall  take  eflfect  and  such  foreign  cor- 
porations as  may,  after  this  act  shall  take  effect,  apply  to  the 
secretary  of  state  for  a  permit  to  do  business  within  this  state. 

Sec.  4.  For  the  purpose  of  determining  the  amount  of  the 
first  franchise  tax  payment  required  by  this  act  of  any  domestic 
corporation  which  may  be  hereafter  chartered,  or  of  any  foreign 
corporation  which  may  hereafter  apply  for  a  permit  to  do  business 
within  this  state,  and  also  for  the  purpose  of  determining  the  cor- 
rectness of  any  report  which  is  provided  for  in  this  act,  the  sec- 
retary of  state  may,  whenever  he  may  deem  it  necessary  or  proper 
to  protect  the  interests  of  the  state,  require  any  one  or  more  of  the 


Franchise  Tax.  613 

officers  of  such  corporations  to  make  and  file  in  the  office  of  the 
secretary  of  state  an  affidavit  or  affidavits  in  writing,  which  shall 
be  subscribed  by  such  officers,  and  by  him  sworn  to  before  some 
officer  who  is  by  law  duly  authorized  to  administer  oaths,  and 
.verified  by  his  seal  of  office,  setting  forth  fully  the  facts  concern- 
ing the  amount  of  the  surplus  and  undivided  profits,  respectively, 
if  any,  of  such  domestic  or  foreign  corporation;  and  until  the 
secretary  of  state  shall  be  fully  satisfied  as  to  the  amount  of  such 
surplus  and  undivided  profits,  respectively,  if  any,  he  shall  not 
file  the  articles  of  incorporation  of  such  proposed  domestic  cor- 
poration, or  issue  such  permit,  or  accept  such  franchise  tax. 

Sec.  5.  For  the  purpose  of  ascertaining  and  determining  the 
amount  of  any  annual  franchise  tax  prescribed  by  this  act,  ex- 
cepting only  the  first  tax  to  be  paid  by  any  domestic  corporation 
which  may  hereafter  be  chartered,  or  of  any  foreign  corporation 
which  may  hereafter  be  authorized  to  do  business  in  this  state ; 
the  president,  vice-president,  general  manager,  secretary,  treas- 
urer and  superintendent  of  each  and  every  domestic  or  foreign 
corporation  embraced  within  the  provisions  of  this  act,  shall  an- 
nually and  between  the  first  and  tenth  days  of  March,  and  also, 
whenever  called  upon  by  the  secretary  of  state  to  do  so,  report 
to  the  secretary  of  state,  in  writing,  and  under  oath,  as  required 
by  Sec.  4  of  this  act,  the  total  amounts  of  the  capital  stock  issued 
and  outstanding,  and  the  surplus  and  undivided  profits,  respective- 
ly, if  any,  of  such  corporation  on  the  first  day  of  March  next  pre- 
ceding; and  the  secretary  of  state  may  ascertain  such  facts  from 
other  sources ;  and  if  the  true  aggregate  of  such  amounts  shall 
exceed  the  authorized  capital  stock  of  such  corporation  as  dis- 
closed by  its  then  current  original  or  amended  articles  of  incor- 
poration, the  amount  of  its  annual  franchise  tax  for  the  year  be- 
ginning the  first  day  of  May,  next  thereafter  shall  be  thereon 
collected  and  paid ;  otherwise,  its  annual  franchise  tax  shall  be 
calculated  and  paid  upon  the  amount  of  its  authorized  capital 
stock  as  shown  by  its  aforesaid  original  or  amended  articles  of 
incorporation.  The  making  and  filing  by  any  one  of  such  officers 
of  such  corporation  of  the  record  required  by  this  section  shall 
relieve  the  other  officers  of  such  corporation  from  the  duty  of 
making  any  report  required  by  this  section,  except  such  report 
or  reports  as  may  be  required  by  the  secretary  of  state. 


614  Taxation  in  Texas. 

Sec.  6.  In  the  event  of  increase  in  the  authorized  capital  stock 
or  any  domestic  or  foreign  corporation,  it  shall  also  pay,  in  ad- 
vance, a  supplemental  franchise  tax  thereon  for  the  remainder  of 
the  year  down  to  and  including  the  30th  day  of  April  next  there- 
after, the  amount  of  which  shall  be  determined  as  is  provided  in 
Section  3  of  this  act  in  case  of  the  first  franchise  tax  payment  to 
be  made  under  this  act  by  a  domestic  corporation  which  may 
be  hereafter  authorized  to  do  business  within  this  state. 

Sec.  7.  Every  person  required  by  tliis  act  to  make  any  annual 
report  to  the  secretary  of-  the  state,  who  shall  for  a  longer  period 
than  five  days,  and  every  person  who  shall  for  more  than  ten 
days  after  the  maiHng  by  the  secretary  of  state  demand  upon  him 
for  any  other  report,  which  the  secretary  of  state  is  by  this  act 
authorized  to  require,  fail  or  refuse  to  make  such  report  shall  be 
deemed  guilty  of  a  misdemeanor,  and  upon  conviction  thereof 
shall  be  fined  in  any  sum  not  less  than  fifty  dollars  and  not  more 
than  two  hundred  dollars,  and  each  day  of  such  failure  or  refusal 
after  the  expiration  of  said  five  days  or  said  ten  days,  as  the  case 
may  be,  shall  constitute  a  separate  offense.  The  secretary  of 
state  shall  keep  a  record  of  the  mailing  of  any  and  all  notices  and 
demands  for  reports  provided  for  by  this  act. 

Sec.  8.  Any  corporation,  either  domestic  or  foreign,  which 
shall  fail  to  pay  any  franchise  tax  provided  for  in  this  act  when 
the  same  shall  become  due  and  payable  under  the  provisions  of 
this  act,  shall  thereupon  become  liable  to  a  penalty  of  twenty- 
five  per  cent  of  the  amount  of  such  franchise  tax  due  by  such 
corporation,  and  if  the  amount  of  such  tax  and  penalty  be  not 
paid  in  full  on  or  before  the  1st  day  of  July  thereafter,  such  cor- 
poration shall  for  such  default  forfeit  its  right  to  do  business  in 
this  state,  which  forfeiture  shall  be  consummated  without  judi- 
cial ascertainment  by  the  secretary  of  state  entering  upon  the  mar- 
gin of  the  record  kept  in  his  office  relating  to  such  corporation, 
the  words  "right  to  do  business  forfeited,"  and  the  date  of  such 
forfeiture,  and  any  corporation  whose  right  to  do  business  shall 
be  thus  forfeited  shall  be  denied  the  right  to  sue  or  defend  in 
any  other  courts  of  this  state,  except  in  a  suit  to  forfeit  the 
charter  of  such  corporation,  and  in  any  suit  against  such  cor- 
poration on  a  cause  of  action  arising  before  such  forfeiture  no 
affirmative  relief  shall  be  granted  to  such  corporation  unless  its 
right  to  do  business  in  this  state  shall  be  revived  as  provided  by 


Franchise  Tax.  615 

this  act.  And  each  and  every  director  and  officer  of  any  cor- 
poration whose  right  to  do  business  within  this  state  shall  be  so 
forfeited,  shall  as  to  any  and  all  debts  of  such  corporation  which 
may  be  created  or  incurred,  with  his  knowledge,  approval  and 
consent,  within  this  state,  after  such  forfeiture  by  any  such  di- 
rectors or  officers,  and  before  the  revival  of  the  right  of  such 
corporation  to  do  business,  be  deemed,  and  held  liable  thereon  in 
the  same  manner  and  to  the  same  extent  as  if  such  directors  and 
officers  of  such  corporation  were  partners. 

Sec.  9.  The  secretary  of  state  shall,  during  the  month  of  May 
of  each  year,  notify  each  domestic  and  foreign  corporation  which 
may  be  or  become  subject  to  a  franchise  tax,  under  any  law  of  this 
state  which  has  failed  to  pay  such  franchise  tax  on  or  before  the 
1st  day  of  May  that  unless  such  overdue  tax  together  with  said 
penalty  thereon  shall  be  paid  on  or  before  the  1st  day  of  July 
next  following  the  right  of  such  corporation  to  do  business  in 
this  state  will  be  forfeited  without  judicial  ascertainment.  Such 
notice  may  be  either  written  or  printed  and  shall  be  verified  by  the 
seal  of  the  office  of  the  secretary  of  state,  and  shall  be  addressed 
to  such  corporation  and  mailed  to  the  postoffice  named  in  its 
articles  of  incorporation  as  its  principal  place  of  business  or  to 
any  other  known  place  of  business  of  such  corporation,  and  a 
record  of  the  date  of  mailing  such  notice  shall  be  kept  by  the 
secretary  of  state.  Such  notice  and  said  record  thereof  shall 
constitute  legal  and  sufficient  notice  thereof  for  all  the  purposes 
of  this  act.  Any  corporation  whose  right  to  do  business  may 
have  been  forfeited  as  provided  in  this  act,  shall  be  relieved  from 
such  forfeiture  by  paying  the  secretary  of  state  any  time  within 
six  months  after  such  forfeiture  the  full  amount  of  the  franchise 
tax  and  penalty  due  by  it,  together  with  an  additional  amount  of 
five  per  cent  of  such  tax  for  each  month  or  fractional  part  of  a 
month  which  shall  elapse  after  such  forfeiture ;  provided  that  such 
amount  shall  in  no  case  be  less  than  five  dollars.  When  such  tax 
and  all  such  penalties  shall  be  fully  paid  to  the  secretary  of  state 
he  shall  revive  and  re-instate  the  right  of  the  corporation  to  do 
business  within  this  state  by  cancelling  the  words  "right  to  do 
business  forfeited,"  upon  his  record  and  endorsing  thereon  the 
word  "revived,"  and  the  date  of  such  revival.  If  any  domestic 
corporation  whose  right  to  do  business  within  this  state  shall 
hereafter  be  forfeited  under  the  provisions  of  this  act,  shall  fail 


616  Taxation  in  Texas. 

to  pay  the  secretary  of  state  on  or  before  the  first  day  of  Janu- 
ary next  following  the  revival  amounts  necessary  to  entitle  it  to 
have  its  right  to  do  business  revived  under  the  provisions  of  this 
act,  such  failure  shall  constitute  sufficient  grounds  for  the  for- 
feiture by  a  judgment  of  any  court  of  competent  jurisdiction  of 
the  charter  of  such  domestic  corporation. 

Sec.  10.  Every  private  corporation  heretofore  chartered  under 
the  laws  of  this  state,  and  every  foreign  corporation  whose  right 
to  do  business  within  this  state  has  heretofore  been  forfeited  as 
provided  by  law  solely  because  of  its  failure  to  pay  within  the 
time  provided  by  law  any  franchise  or  franchise  tax  and  penalty 
or  penalties  prescribed  by  law,  shall  be  permitted  and  authorized 
to  pay  to  the  secretary  of  state  on  or  before  the  first  day  of  Sep- 
tember, 1907,  the  aggregate  amount  of  its  franchise  tax  or  taxes 
and  the  penalty  thereon  as  provided  by  law,  calculated  for  the 
entire  period  of  time  beginning  with  the  day  upon  which  the  first 
unpaid  franchise  tax  payment  became  due  and  ending  the  day  of 
said  payment,  and  upon  such  payment  being  made  to  the  secre- 
tary of  state  he  shall  cancel  such  previous  forfeiture  of  the  right 
of  such  corporation  to  do  business  within  this  state  and  shall  en- 
dorse upon  the  margin  of  the  record  kept  in  his  office  relating  to 
such  corporation  the  word  "Revived,"  and  the  date  of  such  re- 
vival. 

Failure  of  any  such  domestic  corporation  to  pay  such  aggregate 
amount  on  or  before  the  first  day  of  May,  1907,  shall  constitute 
sufficient  grounds  for  the  forfeiture  by  a  judgment  of  any  court 
of  competent  jurisdiction  of  the  charter  of  such  domestic  cor- 
poration ;  it  being  provided,  however,  that  none  of  the  provisions 
of  this  section  shall  apply  to  any  corporation  whose  right  to  do 
business  within  the  state,  or  whose  charter  may  have  been  legally 
forfeited  for  any  other  reason  than  those  mentioned  in  this  sec- 
tion. 

Sec.  11.  Should  any  foreign  corporation  which  may  have  or 
hereafter  obtain  a  permit  to  do  business  within  this  state  desire 
at  any  time  to  withdraw  from  doing  business  in  this  state  it  may 
surrender  such  permit  to  the  secretary  of  state,  who  shall  there- 
upon mark  or  stamp  such  permit  "Surrendered,"  dating  and  sign- 
ing same  officially,  and  shall  endorse  upon  the  record  of  such 
permit  in  his  office  the  word  "Surrendered"  and  the  date  thereof, 
and  thereafter  such  corporation  may  by  complying  with  the  pro- 


Franchise  Tax.  617 

visions  of  this  act  secure  a  new  permit  to  do  business  in  this 
state  without  having  made  any  further  payment  of  franchise  tax 
under  such  old  permit. 

Sec.  12.  In  any  and  all  cases  in  which  the  charter  or  right  to 
do  business  of  any  private  domestic  corporation  heretofore  or 
hereafter  chartered  under  the  laws  of  this  state  or  the  permit  of 
any  foreign  corporation  or  its  right  to  do  business  within  this 
state  shall  have  been  or  shall  hereafter  be  forfeited  it  shall  be 
unlawful  for  any  person  or  persons  who  were  or  shall  be  stock- 
holders, or  officers  of  such  corporation  at  the  time  of  such  for- 
feiture to  do  business  within  this  state  in  or  under  the  corporate 
name  of  such  corporation  or  to  use  signs  or  advertisements  of 
such  corporation  or  similar  to  the  signs  or  advertisements  which 
were  used  by  such  corporation  before  such  forfeiture,  and  each 
and  every  person  who  may  violate  any  of  the  provisions  of  this 
section  shall  be  deemed  guilty  of  a  misdemeanor,  and  upon  con- 
viction thereof  shall  be  fined  in  any  sum  not  less  than  one  hun- 
dred dollars  and  not  more  than  one  thousand  dollars;  provided, 
the  inhibition  and  penalties  prescribed  by  this  section  shall  not 
apply  where  the  right  of  such  corporation  to  do  business  within 
this  state  has  been  revived  in  the  manner  provided  by  law  and 
is  at  the  time  in  good  standing. 

Sec.  13.  The  franchise  tax  imposed  by  this  act  shall  not  apply 
to  any  insurance  company,  surety,  guaranty,  or  fidelity  company 
or  any  transportation  company  or  any  sleeping,  palace  car  and 
dining  car  company  which  now  is  required  to  pay  an  annual  tax 
measured  by  their  gross  receipts,  or  to  corporations  having  no 
capital  stock  and  organized  for  the  exclusive  purpose  of  promot- 
ing the  public  interest  of  any  city  or  town  or  to  corporations  or- 
ganized for  the  purpose  of  religious  worship ;  or  for  providing 
places  of  burial  not  for  private  profit ;  or  corporations  organized 
for  the  purpose  of  holding  agricultural  fairs  and  encouraging 
agricultural  pursuits,  or  for  strictly  educational  purposes,  or  for 
purely  public  charity. 

Sec.  14.  The  attorney  general  shall  be  authorized  and  it  shall 
be  his  duty  to  bring  suit  therefor  against  any  and  all  such  cor- 
porations which  may  be  or  become  subject  to  or  liable  for  any 
and  all  franchise  tax  or  taxes  or  penalties  under  this  or  any 
former  law,  and  in  case  there  may  now  be  or  shall  hereafter  ex- 
ist valid  grounds  for  the  forfeiture  of  the  charter  of  any  domestic 


618  Taxation  in  Texas. 

private  corporation  or  failure  to  pay  any  franchise  tax  or  fran- 
chise taxes  or  penalty  or  penalties  to  which  it  may  have  become 
or  shall  hereafter  be  or  become  subject  or  liable  under  this  or 
former  law  it  shall  be  his  duty  to  bring  suit  for  a  forfeiture  of 
such  charter  and  for  the  purpose  of  enforcing  the  provisions  of 
this  act  by  civil  suits,  venue  is  hereby  conferred  upon  the  courts 
of  Travis  County  concurrently  with  the  courts  of  the  county  in 
which  the  principal  office  of  such  corporation  may  be  located 
as  shown  by  its  articles  or  amended  articles  of  incorporation. 
Such  courts,  shall  also  have  authority  to  restrain  and  enjoin  a 
violation  of  any  and  all  of  the  provisions  of  this  act.  In  any  and 
all  cases  in  which  any  court  having  jurisdiction  thereof  shall 
make  and  enter  judgment  forfeiting  the  charter  of  any  such  cor- 
poration the  court  may  appoint  a  receiver  thereof  and  may  admin- 
ister such  receivership  under  the  laws  regulating  receiverships. 

Sec.  15.  Upon  the  rendition  by  the  district  court  of  any  judg- 
ment or  forfeiture  under  the  provisions  of  this  act  the  clerk  of 
that  court  shall  forthwith  mail  to  the  secretary  of  state  a  certified 
copy  of  such  judgment,  and  upon  receipt  thereof  he  shall  endorse 
upon  the  record  of  such  charter  in  his  office  the  words  "Judg- 
ment of  forfeiture"  and  the  date  of  such  judgment.  In  event 
of  an  appeal  from  such  judgment  by  writ  of  error  or  otherwise 
the  clerk  of  the  court  from  which  such  appeal  is  taken  shall  forth- 
with certify  to  the  secretary  of  state  the  fact  that  such  appeal  has 
been  perfected  and  he  shall  endorse  upon  the  record  of  such  char- 
ter in  his  office  the  word  "Appealed"  and  the  date  upon  which 
such  appeal  was  perfected.  When  final  disposition  of  such  ap- 
peal shall  be  made  the  clerk  of  the  court  making  such  disposi- 
tion thereof  shall  forthwith  certify  such  disposition  and  the  date 
thereof  to  the  secretary  of  state,  who  shall  briefly  note  same  upon 
the  record  of  such  charter  in  his  office  and  the  date  of  such  final 
disposition. 

Sec.  15a.  In  case  a  corporation  is  actually  in  process  of  liquida- 
tion such  corporation  shall  only  be  required  to  pay  a  franchise 
tax  calculated  upon  the  difference  between  the  amount  of  stock 
actually  issued  and  the  amount  of  liquidating  dividends  actually 
paid  upon  such  stock ;  provided,  that  the  president  and  secretary 
of  such  corporation  shall  make  affidavit  as  to  the  total  amount  of 


Franchise  Tax.  619 

capital  stock  issued  and  as  to  the  amount  of  liquidating  dividends 
actually  paid  and  that  such  corporation  is  in  an  actual  bona  fide 
state  of  liquidation. 

Sec.  16.  Articles  5243i,  and  5243j,  Chapter  9,  Title  104,  of  the 
Revised  Civil  Statutes  of  Texas,  as  amended  by  Chapter  19  of 
the  General  Laws  of  the  Twenty-ninth  Legislature  of  Texas,  and 
Chapter  72,  of  the  General  Laws  of  the  Twenty-ninth  Legislature 
and  any  and  all  laws  in  conflict  with  any  of  the  provisions  of  this 
act  shall  be,  and  the  same  are  hereby  repealed.  Acts  30th  Leg., 
pp:  502  to  508. 


CHAPTER  LIV. 

UNORGANIZED  COUNTIES. 

Sec.  Sec. 

947.  Property       in       unorganized      .957.  Deed    shall    vest    good    title 

counties.  when. 

948.  Lands  of  non-residents  in  un-      958.  County    taxets     to     be    paid 

organized  counties.  when. 

949.  Lands   in   unorganized   coun-       959.  Comptroller  to  keep  taxes  of 

ties.  unorganized  counties,  etc. 

950.  Duties   of  comptroller   in   re-      960.  Same  subject. 

lation  thereto.  961.  Special  deposit  to  be  made  by 

951.  May    appeal    from    comptrol-  comptroller. 

ler's  assessment.  i62.  Taxes  upon  lands  of  non-resi- 

952.  May  levy  upon  and  sell  when.  dents  in  unorganized  coun- 

953.  Sale.  ties. 

954.  Redemption.  963.  Personal  property  where  tax- 

955.  Tax  deed.  able. 

956.  List  of  purchasers  to  be  kept  964.  Newly  organized  county. 

in  office. 

§  947.     Property  in  unorganized  counties. 

All  property  subject  to  taxation  in,  and  owned  by  residents  of 
unorganized  counties,  shall  be  assessed  and  the  taxes  thereon  paid 
in  the  counties  to  which  such  unorganized  counties  shall  be  at- 
tached for  judicial  purposes ;  and  lands  lying  and  owned  by  non- 
residents or  unorganized  counties,  and  lands  lying  in  the  ter- 
ritory not  laid  off  into  counties,  shall  be  assessed  and  the  taxes 
thereon  collected  at  the  office  of  the  comptroller  of  the  state.  St. 
Const.,  Art.  8,  Sec.  12. 

Construing  this  section  and  Section  11  of  this  Article,  held 
that  the  collection  of  taxes  on  personalty  of  a  resident  of  an  un- 
organized county  may  be  made  by  the  collector  of  the  organized 
county.    Llano  County  v.  Fcnight,  5  S.  W.  494. 

There  is  not  a  constitutional  provision  as  tf  the  place,  where 
taxes  on  personal  property  in  an  unorganized  county  and  owned 
by  a  non-resident  thereof,  shall  be  collected  and  assessed.    Id. 

§  948.     Lands  of  non-residents  in  unorganized  counties,  etc. 

Lands  lying  in  and  owned  by  non-residents  of  unorganized 
counties,  and  lands  lying  in  the  territory  not  laid  off  into  coun- 


Unorganized  Counties.  621 

ties,  shall  be  assessed  by  the  comptroller  of  public  accounts  in 
accordance  with  such  regulations  as  he  may  adont  and  estab- 
lish for  that  purpose.     Sayles  R.  S.,  Art.  5137. 

§  949.     Lands  in  unorganized  counties. 

All  lands  and  other  property  situated  in  the  unorganized  coun- 
ties of  this  state,  owned  by  residents  of  such  unorganized  coun- 
ties, shall  be  assessed  by  the  assessor  of  the  organized  county 
to  which  such  unorganized  county  is  attached  for  judicial  pur- 
poses, and  the  taxes  collected  by  the  collector  of  such  organized 
county ;  and  the  same  remedies  for  the  enforcement  of  the  assess- 
ment and  collection  of  such  taxes  shall  apply  as  the  law  directs 
for  the  assessment  and  collection  of  the  taxes  on  land  situated  in 
organized  counties  of  this  state.    Sayles  R.  S.,  Art.  5138. 

§  950.     Duties  of  comptroller  in  relation  thereto. 

The  comptroller  of  state  is  authorized,  empowered,  and  re- 
quired to  assess  and  collect  the  state  and  county  taxes  on  all 
lands  in  this  state  which  are  situated  in  unorganized  counties 
thereof  and  owned  by  non-residents  thereof,  in  the  manner  here- 
inafter provided.     Sayles  R.  S.,  Art.  5139. 

The  comptroller  may  at  any  time  prior  to  the  return  of  the 
assessment  rolls  to  his  office  of  the  organized  county  to  which 
such  unorganized  county  or  counties  are  attached  for  judicial 
purposes,  receive  the  assessment  of  and  collect  the  taxes  on  any 
lands  situated  in  such  unorganized  county  or  counties  which  are 
owned  by  non-residents  thereof.     Sayles  R.  S.,  Art.  5140. 

As  soon  as  the  tax  rolls  of  the  organized  counties  to  which  un- 
organized counties  are  attached  for  judicial  purposes  shall  have 
been  received  by  the  comptroller,  he  shall  by  comparing  the  lands 
rendered  to  the  assessor  of  the  organized  county  by  the  residents 
of  such  organized  county  or  counties  with  those  previously  ren- 
dered to  him  by  non-residents,  make  out  a  list  of  all  unrendered 
lands  situated  in  such  vmorganized  county,  and  place  such  value 
upon  the  lands  thus  found  to  be  unrendered  as  he,  as  a  sworn 
officer,  may  deem  just  and  fair ;  provided,  nothing  in  this  law  shall 
be  so  construed  as  to  prevent  the  comptroller  from  receiving  the 
assessment  and  taxes  due  at  any  time  prior  to  the  completion  of 
the  unrendered  list  of  such  unorganized  county.  Sayles  R.  S. 
5141. 


622  Taxation  in  Texas. 

After  the  completion  of  the  unrendered  list  provided  for  in 

this  chapter,  the  owner  or  owners  must  pay  according  to  the 

value  and  assessment  made  thereon  by  the  comptroller.  Sayles 
R.  S.,  Art.  5142. 

§  951.     May  appeal  from  comptroller's  assessment. 

Assessment  of  lands  rendered  to  the  comptroller  under  the  pro- 
visions of  this  chapter  shall  be  made  by  the  party  rendering  the 
same  under  oath  as  to  their  value ;  but  if  the  comptroller  thinks 
the  valuation  too  low  he  shall  object,  and  if  the  comptroller  and 
the  party  rendering  the  land  can  not  agree  then  the  comptroller 
shall  assess  the  same  at  such  value  as  he  as  a  sworn  officer  may 
think  it  is  worth;  and  if  the  party  rendering  feels  that  the  as- 
sessment is  too  high  he  may  appeal  to  the  board  of  equalization, 
which  for  such  purposes  shall  consist  of  the  governor,  attorney 
general  and  the  secretary  of  state,  and  their  decision  shall  be 
final.    Sayles  R.  S.,  Art.  5141. 

§  952.     May  levy  upon  and  sell  when. 

Three  months  after  the  completion  of  the  unrendered  list  of 
each  unorganized  county,  respectively,  the  comptroller  shall  pro- 
ceed to  levy  upon  and  advertise  all  lands  in  such  counties  upon 
which  the  taxes  are  due  and  unpaid,  giving  notice  of  the  amount 
due  upon  each  separate  tract  of  land,  and  giving  such  description 
of  the  land  upon  which  taxes  are  due  and  unpaid  as  he  may  be 
in  possession  of ;  such  notice  to  be  given  by  publication  in  some 
weekly  newspaper  published  in  the  state  for  four  consecutive 
weeks;  said  notice  to  state  that  on  a  certain  diy  therein  named 
the  comptroller  will  proceed  to  sell  the  land  therein  described,  or 
so  much  thereof  as  may  be  necessary  to  pay  the  state  and  county 
taxes  due,  and  the  cost  of  advertising  the  same.  Sayles  R.  S., 
Art.  5144. 

§  953.     Sale. 

The  sale  shall  commence  on  the  day  named  in  said  notice  and 
may  continue  from  day  to  day  (Sundays  and  legal  holidays  ex- 
cepted) until  completed;  such  sale  shall  be  had  in  front  of  the 
comptroller's  office  in  the  city  of  Austin,  between  the  hours  of 
eight  and  nine  o'clock  A.  M.,  and  four  o'clock  P.  M.  of  each  day. 
Sayles  R.  S.,  Art.  5146. 


Unorganized  Counties,  623 

§  954.     Redemption. 

Should  the  lands  bid  in  by  the  comptroller  for  the  state  not 
he  redeemed  by  the  owner  thereof  or  his  agent  within  two  years, 
by  the  party  redeeming  the  same  paying  double  the  amount  for 
which  the  said  land  was  sold,  then  the  said  lands  thus  sold  and 
unredeemed  shall  become  vacant  and  revert  to  and  become  a 
part  of  the  public  free  school  fund  to  be  sold  and  disposed  of  as 
other  lands  belonging  to  the  public  free  school  fund  are  to  be 
sold  and  disposed  of  by  law.     Sayles  R.  S.,  Art.  5147. 

§955.     Tax  deed. 

The  comptroller  shall  give  to  the  purchaser  of  any  lands  the 
sale  of  which  is  provided  for  in  this  chapter,  a  deed  to  the  same, 
giving  in  such  deed  such  description  as  he  may  be  in  possession  of. 
Sayles  R.  S.,  Art.  5148. 

§  956.     List  of  purchasers  to  be  kept  in  office. 

The  comptroller  shall  keep  a  list  of  the  purchaser  or  pur- 
chasers of  all  such  lands  in  his  office,  showing  the  name  and 
post  office  of  the  purchaser  or  purchasers,  together  with  the 
amount  and  description  of  the  land  sold  and  the  amount  for 
which  it  was  sold,  and  the  date  of  sale.    Sayles  R.  S.,  Art.  5149. 

§  957.     Deed  shall  vest  good  title  when. 

The  deed  given  to  the  purchaser  or  purchasers  by  the  comp- 
troller under  the  provisions  of  this  chapter  shall  vest  a  good  and 
sufficient  fee-simple  title  in  the  purchaser  or  purchasers,  subject 
to  be  impeached  only  for  actual  fraud ;  provided,  the  former 
owner  or  owners  thereof  do  not  redeem  the  same  within  two  years 
from  the  date  of  the  deed  either  by  paying  to  the  purchaser  or 
purchasers  double  the  amount  for  which  said  land  was  sold,  or 
by  making  a  tender  of  the  same  to  him  or  his  agent,  or  by  de- 
positing with  the  comptroller  before  the  expiration  of  the  two 
years  double  the  amount  for  which  such  land  was  sold,  to  be  paid 
by  the  comptroller,  when  called  upon,  to  the  purchaser  or  pur- 
chasers thereof.     Sayles  R.  S.,  Art.  5150. 

§  958.     County  taxes  to  be  paid  when. 

All  county  taxes  collected  under  the  provisions  of  Article  5147 
shall  be  paid  into  the  county  treasury  of  the  organized  county  to 
which  the  unorganized  county  is  attached  for  judicial  purposes. 
Sayles  R.  S.,  Art.  5151. 


624  Taxation  in  Texas. 

§  959.     Comptroller   to   keep   taxes   of   unorganized   counties, 
etc. 

All  county  taxes  other  than  taxes  to  pay  pro  rata  of  indebted- 
ness to  parent  county,  due  unorganized  counties,  collected  by 
the  comptroller,  shall  be  kept  by  him  to  the  credit  of  such  unor- 
ganized county  until  the  total  sum  to  the  credit  of  the  county 
shall  reach  the  sum  of  five  thousand  dollars.  Then  he  shall,  upon 
the  demand  of  the  treasurer  of  the  former  unorganized  county, 
when  the  same  shall  have  organized,  pay  said  sum,  or  whatever 
amount  is  held  to  the  credit  of  said  county,  over  to  said  treasurer. 
And  all  county  taxes  collected  by  the  comptroller  after  the  amount 
to  the  credit  of  such  unorganized  county  shall  reach  the  amount 
of  five  thousand  dollars,  shall  be  paid  into  the  county  treasury  of 
the  organized  county  to  which  the  unorganized  county  is  attached 
for  judicial  purposes.    Sayles  R.  S.,  Art.  5152. 

§  960.     Same  subject. 

Where  the  amount  to  the  credit  of  any  unorganized  county  now 
exceeds  five  thousand  dollars,  the  comptroller  shall  keep  said 
sum  to  be  paid  to  the  treasurer  of  such  unorganized  county  when 
the  same  shall  organize ;  and  all  county  taxes,  other  than  taxes 
collected  to  pay  pro  rata  of  indebtedness  to  parent  county,  here- 
after elected  by  the  comptroller  in  such  counties,  shall  be  paid 
into  the  county  treasury  of  the  organized  county  to  which  such 
county  is  attached  for  judicial  purposes.    Sayles  R.  S.,  Art.  5152a. 

§  961.     Special  deposit  to  be  made  by  comptroller. 

All  money  received  by  the  comptroller  on  deposit  for  the  re- 
demption of  land  sold  and  bought  by  individuals  shall  be  by  him 
deposited  in  the  state  treasury  as  a  special  deposit,  subject  to  the 
order  of  the  party  to  whom  the  conditional  deed  to  such  land  was 
given.  So  also  shall  all  county  taxes  collected  by  the  comptroller 
under  the  provisions  of  this  law  be  deposited  in  the  state  treas- 
ury as  a  special  fund,  subject  to  the  order  of  the  comptroller,  to 
be  paid  to  the  county  treasurers  as  provided  in  this  chapter. 
Sayles  R.  S.,  Art.  5153. 

§  962.     Taxes    upon    lands    of    non-residents   in   unorganized 

counties. 

The  taxes  upon  lands  lying  in  and  owned  by  non-residents  of 

unorganized  counties,  and  upon  lands  situated  in  the  territory  not 

laid  off  into  counties,  shall  be  paid  and  collected  at  the  office  of 


Unorganized  Counties.  625 

the  comptroller  of  public  accounts,  under  such  regulations  as  he 
may  adopt  for  that  purpose.    Sayles  R.  S.,  Art.  5209. 
§  963.     Personal  property  where  taxable. 

By  Const.  Tex.,  Art.  8,  Sees.  1,  11,  and  Rev.  St.,  Arts.  4669, 
4673,  4676,  and  Laws  1879,  Chap.  50,  Sec.  1,  every  kind  of  prop- 
erty situated  within  the  state,  and  not  specially  exempted  by  law, 
is  to  be  taxed,  and  the  assessment  and  collection  of  taxes  on 
property  are  to  take  place  in  the  county  where  it  is  situated.  The 
constitution  and  laws  of  the  state  provide  for  the  assessment  and 
collection  of  taxes  on  property,  both  real  and  personal,  of  resi- 
dents of  unorganized  counties,  and  on  real  property  of  non-resi- 
dents, by  the  taxing  officers  of  the  counties  to  which  they  are  at- 
tached for  judicial  purposes.  But  there  is  no  provision  as  to 
the  place  where  taxes  on  personal  property,  situated  in  an  unor- 
ganized county  and  owned  by  a  non-resident  thereof,  shall  be 
assessed  and  collected.  Held,  that  an  unorganized  county  being 
in  effect  a  part  of  the  county  to  which  it  is  so  attached,  the  col- 
lection of  taxes  on  such  personalty  of  a  non-resident  may  be  en- 
forced by  the  tax  collector  of  the  latter  county.  Llano  Cattle  Co. 
V.  Faught,  5  S.  W.  494,  69  Tex.  402. 
§  964.     Newly  organized  county. 

The  acceptance  by  the  comptroller  of  land  rendered  for  tax- 
ation by  a  non-resident,  in  an  unorganized  county,  as  provided 
in  Const.,  Art.  8,  Sees.  11,  12  (Sayles  Civil  St.,  Arts.  4728,  4728a, 
et  seq.),  does  not  prevent  the  county,  upon  its  subsequent  organ- 
ization, from  collecting  the  taxes,  where  the  same  have  not  been 
actually  paid  to  the  comptroller,  and  the  organization  is  effected 
prior  to  June  1  of  that  year.  Magnolia  Cattle  &  Land  Co.  v. 
Love,  21  S.  W.  574,  2  Tex.  Civ.  App.  385. 


40 


CHAPTER  LV. 


TAX  COLLECTOR. 


Sec.  Sec. 

965.  Collector  to  keep  books.  992. 

966.  Tax  collector  to  be  furnished 

books,  etc. 

967.  Unlisted  property  —  Supple- 

mental roll.  993. 

968.  Election  and  term  of  collec- 

tor. 

969.  Vacancies— How  filled.  994. 

970.  Sheriff  as  collector— When. 

971.  Bonds  and  oaths  of  collector.      995. 

972.  Liability  of  tax  collector  and 

evidence  against. 

973.  New  bond.  996. 

974.  Bond  for  county  taxes. 

975.  All  bonds  to  be  first  approved.       997. 

976.  May    appoint    deputies. 

977.  Rolls  to  be  warrant.    " 

978.  Collector  for  all  taxes.  998. 

979.  Collections — When  to  begin. 

980.  Shall    keep    ofllce    at   county 

seat.  999. 

981.  Tax    receipt    and    its    requi- 

sites. 1000. 

982.  Quarterly  reports — Requisites 

of — Duties  of  collector. 

983.  Make   report   to   commission-      1001. 

ers'  court. 

984.  List  of  delinquents  and  Insol-      1002. 

vents  to  be  made  out.  1003. 

985.  Collector  to  endeavor  to  col-      1004. 

lect  delinquent  taxes. 

986.  Non-residents.  1005. 

987.  Forced  collections  to  begin — 

When.  1006. 

988.  Collector  to  file  complaint — 

When. 

989.  Compensation. 

990.  For  occupation  tax.  ^^07. 

991.  Fees  to  be  retained. 


Fees  less  than  maximumi — 
Statements  of  fees  collect- 
ed— Excess  to  be  paid  into 
county  treasury. 
Deputies  and  assistants — Ap- 
pointment and  compensa- 
tion. 
Collection  of  delinquent  fees 

— Fees  not  to  be  remitted. 
Penalty  for  failure  to  charge 
up  fees,  or  for  remission  of 
fees,  etc. 
Payment    for    ex-officio    ser- 
vices. 
Officers    to     keep     a    correct 
statement — Accounts    to    be 
examined  by  the  grand  jury. 
Certain  officers   not  required 
to  make  a  report  or  keep  a 
statement. 
Statement    by    tax    collector 
and  assessor. 

Fiscal  year — At  what  times 
reports  must  be  made  and 
by  whom. 

Compensation  for  one  levy 
only,  etc. 

Payments  of  moneys. 
Notification  to  pay,  etc. 
Tax  collector  to  prepare  de- 
linquent tax  record. 
Collector's  fees  under  delin- 
quent tax  acts. 
Duty  of  the  tax  collector  to 
collect    and     prepare     lists 
each  year  under  the  delin- 
quent tax  act. 

Must  account  for  taxes  col- 
lected whether  valid  or 
not. 


Tax  Collector. 


627 


Sec. 

1008.  Application  of  payment. 

1009.  Duty  of  tax  collector  when 
delinquent  has  no  property 
in  county  out  of  which 
taxes  can  be  collected. 

1010.  Receipts  to  creditors. 

1011.  City  bonds. 

1012.  Rolls  must  be  delivered. 

1013.  Parties  to  suit  on  bond. 

1014.  Evidence  in  suit  on  bond. 

1015.  Suit  against  defaulting — 
Pleadings — Interest. 

1016.  Collection  by  authorized 
party  is  collection  by  coun- 
ty. 

1017.  Suspension. 

1018.  Additional  bond. 

1019.  Removal  from  office. 

1020.  Cities — Action     on     bond: — 

Proof  necessary. 

1021.  Successor  of  sheriff. 

1022.  No  release  of  sureties — 
When. 

1023.  Practice  in  suit  against 
what  must  be  shown. 

1024.  Sureties  not  released  until 
new  bond  approved. 

1025.  Suit  on  bond — Letter  from 
comptroller  admissible. 

1026.  No  liability  as  to  county  or 
sureties  on  bond  on  taxes 
collected  without  authority. 


Sec. 

1027. 

1028. 


1029. 

1030. 

1031. 

1032. 

1033. 

1034. 
1035. 
1036. 

1037. 

1038. 
1039. 
1040. 
1041. 


Suit    on    delinquent    sheriff 
bond. 

Cannot  question  validity  of 
act  to  avoid  payment  of 
moneys  collected, 
(a)  Not  entitled  to  fees 
from  State  when  land  is 
bid  in  by  State  unless  re- 
deemed by  owner. 

Liability  of  surety  not  lim- 
ited— When. 

Interest   on    amount    in   de- 
fault. 

Suit  against  to  recover  tax 
on  illegal  valuation. 

Collection      on       municipal 
bonds. 

Entitled    to    one    dollar    for 
each  correct  assessment. 

Rights  of  surety. 

Limitation  as  to   collecting. 

Not  liable  to   county  under 
bond  to  State. 

Cannot    deny    officer's    elec- 
tion. 

A  trespasser — When. 

Right  to  emoluments. 

Authority  to  tax  collector. 

Tax  collector  alone  can  col- 
lect. 


§  965.     Collector  to  keep  books. 

The  collector  of  taxes  shall  keep  a  book  of  such  size  and 
character  as  may  be  necessary,  in  which  shall  be  entered  quar- 
terly at  the  following  dates,  to-wit,  January  1,  April  1,  July  1, 
and  October  1,  or  within  ten  days  thereafter,  in  which  to  re- 
quire the  returns  to  be  made  under  the  provisions  of  this  chap- 
ter, the  several  amounts  as  shown  by  such  returns  for  which 
and  upon  which  any  person,  firm  or  association  of  persons  is 
or  may  be  liable  to  a  tax  upon  occupations  under  article  5049, 
and  within  fifteen  days  from  the  time  of  receiving  and  making 
up  the  several  amounts  and  the  sums  due  upon  such  amounts 
as  occupation  tax,  the  collector  shall  forward  to  the  comp- 


628  .  Taxation  in  Texas. 

troller  of  public  accounts  a  transcript  or  duplicate  of  the  re- 
turn and  the  amount  as  shown  by  his  record,  this  transcript 
and  record  from  which  it  is  taken  to  show  the  amount  of 
such  quarterly  returns  and  the  tax  due  thereon  from  every 
person,  firm  or  association  of  persons  liable  to  such  tax;  pro- 
vided, that  nothing  contained  in  this  article  is  intended  to  af- 
fect the  liability,  which  in  the  absence  of  this  statute,  would 
be  incurred  under  any  special  enactment  of  this  state.  (Acts 
1879,  p.  143.)     Sayles  R.  S.,  Art.  5052. 

§  966.     Tax  collector  to  be  furnished  books,  etc. 

The  comptroller  of  public  accounts  shall  be  authorized  and 
required  to  furnish  tax  collectors  the  necessary  books  and 
blanks  required  to  be  used  by  such  collectors  under  the  provi- 
sions of  this  chapter.    Sayles  R.  S.,  Art.  5053. 

§  967.     Unlisted  property — Supplemental  roll. 

Collectors  of  taxes  of  counties,  cities  and  towns,  when  any 
taxpayer  applies  to  them  for  the  purpose  of  ascertaining  the 
amount  of  his  taxes,  and  the  collector  finds  that  his  name  or 
his  property  does  not  appear  on  the  tax  roll,  shall,  and  it  is 
hereby  made  their  duty  to  assess  said  taxpayer  then  and  there, 
collect  the  taxes  and  enter  the  same  upon  a  supplemental  tax 
roll  to  be  made  by  him.  He  shall  make  out  on  forms  to  be  fur- 
nished by  the  comptroller,  three  copies  of  such  supplemental 
roll,  one  copy  to  be  delivered  to  the  comptroller  of  public 
accounts,  and  one  to  be  delivered  to  the  county  clerk,  and  one 
to  be  filed  in  the  collector's  office.  Said  supplemental  tax  roll 
shall  be  made  out  and  delivered  to  the  county  commis- 
sioners' court  with  all  other  papers  pertaining  to  the  final 
settlement  of  said  tax  collector,  and  the  same  shall  be  ex- 
amined and  approved  by  the  county  commissioners'  court,  in 
like  manner  as  upon  the  tax  roll  of  the  tax  assessor.  The 
collectors  of  taxes  are  hereby  authorized  and  empowered  to 
administer  all  oaths  necessary  to  obtain  a  full  and  correct 
assessment  of  all  taxable  property  assessed  by  them  under 
this  act.  The  oath  shall  be  the  same  as  is  administered  by  tax 
assessors  under  existing  law.  The  collector  of  taxes  shall  re- 
ceive the  following  compensation  for  his  services  on  all  assess- 
ments made  by  him  under  this  act,  to-wit:  For  assessing  the 
state  and  county  taxes,  four  cents  for  each  one  hundred  dollars 


Tax  Collector.  629 

of  property  so  assessed,  and  for  assessing  the  poll  tax,  five 
cents  for  each  poll,  which  fee  shall  be  paid  in  the  same  way 
as  the  tax  assessor's  fee  in  Article  5133.  (Acts  1895,  p.  103.) 
Sayles  R.  S.,  Art.  5121a. 

§  968.     Election  and  term  of  collector. 

In  each  county  having  ten  thousand  inhabitants,  to  be  de- 
termined by  the  last  preceding  census  of  the  United  States, 
there  shall  be  elected  by  the  qualified  voters,  at  the  same  time 
and  under  the  same  law  regulating  the  election  of  state  and 
county  officers,  a  collector  of  taxes,  who  $hall  hold  his  office 
for  two  years  and  until  his  successor  is  elected  and  qualified. 
Sayles  R.  S.,  Art.  5154. 

§  969.     Vacancies — How  filled. 

Should  the  ofifice  of  collector  of  taxes  from  any  cause  be- 
come vacant  before  the  expiration  of  said  term,  it  shall  be 
the  duty  of  the  commissioners'  court  in  the  county  in  which 
such  vacancy  shall  occur,  to  appoint  a  collector  of  taxes,  who 
shall  be  qualified  in  the  same  manner  and  subject  to  like  bonds 
as  the  collector  of  taxes  elected,  and  the  collector  of  taxes  so 
appointed  shall  hold  his  office  for  and  during  the  unexpired 
term  of  his  predecessor  and 'until  his  successor  shall  have 
been  qualified ;  and  the  collector  of  taxes  so  appointed  shall 
have  all  the  rights  and  perform  all  the  duties  required  by  law 
of  the  collector  of  taxes  elected.     Sayles  R.  S.,  Art.  5155. 

§  970.     Sheriff  as  collector  when. 

In  each  county  having  less  than  ten  thousand  inhabitants  the 
sheriff  of  such  county  shall  be  the  collector  of  taxes,  and  shall 
have  and  exercise  all  the  rights,  powers  and  privileges,  be  sub- 
ject to  all  the  requirements,  restrictions  and  perform  all  the 
duties  imposed  by  law  upon  collectors ;  and  he  shall  also  give 
the  same  bonds  required  of  a  collector  of  taxes  elected.  (Const., 
Art.  8,  16.)     Sayles'  R.  S.,  Art.  5156. 

In  determining  whether  a  sheriff  elected  in  1880  was,  under 
Sec.  16,  Art.  8,  of  the  Constitution  of  1876,  also  ex  officio  col- 
lector of  taxes  by  reason  of  his  county  containing  less  than  ten 
thousand  inhabitants,  "under  the  last  preceding  census  of  the 
United  States,"  the  list  of  the  enumerator  taking  the  tenth 
census  for  the  county,  if  duly  certified  as  such  and  filed  in  the 
office  of  the  county  clerk,  prior  to  his  election,  will  govern. 
Nelson  v.  Edwards,  55  Tex.  389. 


630  Taxation  in  Texas. 

§  971.     Bonds  and  oaths  of  collector. 

Every  collector  of  taxes,  within  twenty  days  after  he  shall 
have  received  notice  of  his  election  or  appointment,  and  before 
entering  upon  the  duties  of  his  office,  shall  give  a  bond  based 
upon  unincumbered  real  estate  of  the  sureties  subject  to  execu- 
tion, payable  to  the  governor  and  his  successors  in  ofhce,  in 
a  sum  which  shall  be  equal  to  the  whole  amount  of  the  state 
tax  of  the  county  as  shown  by  the  last  preceding  assessment, 
with  at  least  three  good  and  sufficient  sureties,  to  be  ap- 
proved by  the  commissioners'  court  of  his  county,  which  shall 
be  further  subject  to  the  approval  of  the  comptroller,  and  shall 
take  and  subscribe  the  oath  prescribed  by  the  constitution, 
which,  together  with  said  bonds,  shall  be  recorded  in  the  office 
of  the  clerk  of  the  county  court  of  said  county  and  be  for- 
warded by  the  county  judge  of  the  county  to  the  comptroller 
to  be  deposited  in  his  office.  Said  bond  shall  be  conditioned 
for  the  faithful  performance  of  the  duties  of  his  office  as  col- 
lector of  taxes  for  and  during  the  full  term  for  which  he  was 
elected  or  appointed,  and  shall  not  become  void  upon  the  first 
recovery,  but  suit  may  be  maintained  thereon  until  the  whole 
amount  thereof  be  recovered,    ^ayles  R.  S.,  Art.  5157. 

§  972.     Liability  of  tax  collector  and  evidence  against. 

In  a  suit  by  a  county  against  the  sheriff  who  was  ex  officio 
collector  of  the  county  to  recover  taxes  alleged  to  have  been  col- 
lected by  him  and  not  paid  over,  reports  of  taxes  collected, 
indorsed  by  his  deputy  in  his  name  as  sheriff  and  collector, 
when  produced  from  the  proper  custody  and  attached  as  ex- 
hibits to  the  petition  are  admissible  in  evidence,  though  not 
sworn  to.     Webb  County  v.  Gonzales,  69  Tex.  455,  6  S.  W.  781. 

§  973.     New  bond. 

The  collector  of  taxes  may  be  required  to  furnish  a  new  bond 
or  additional  surety  whenever,  in  the  opinion  of  the  commis- 
sioners' court  or  comptroller  of  public  accounts,  it  may  be  ad- 
visable. Should  any  collector  of  taxes  fail  to  give  a  new  bond 
or  additional  security  when  required,  he  shall  be  suspended 
from  office  by  the  commissioners'  court  of  his  county,  and 
immediately  thereafter  be  removed  from  office  in  the  mode  pre- 
scribed by  law.    R.  S.,  Art.  5158. 


Tax  Collector.  631 

§  974.     Bond  for  county  taxes. 

Collectors  of  taxes  shall  give  a  like  bond,  with  like  condi- 
tions to  the  county  judges  of  their  respective  counties  and 
their  successors  in  office,  in  a  sum  not  less  than  the  whole 
amount  of  the  county  tax  of  the  county,  as  shown  by  the  last 
preceding  assessment,  with  at  least  three  good  and  sufficient 
sureties  to  be  approved  by  the  commissioners'  court  of  his 
county,  which  bond  shall  be  recorded  and  deposited  in  the 
office  of  the  clerk  of  the  county  court.  A  new  bond  and  addi- 
tional security  may  be  required,  and  for  a  failure  to  give  such 
new  bond  or  additional  security  the  collector  of  taxes  may  be 
removed  from  office  in  the  manner  prescribed  by  law.  Sayles 
R.  S.,  Art.  5159. 

§  975.     All  bonds  to  be  first  approved. 

No  collector  of  taxes  shall  enter  upon  the  discharge  of  the 
duties  of  the  office  until  all  the  bonds  required  of  him  by  law 
for  the  collection  of  any  taxes,  state,  county  or  special,  shall 
have  been  given  and  approved.    Sayles  R.  S.,  Art.  5l60. 

§  976.     May  appoint  deputies. 

Each  collector  of  taxes  may  appoint  one  or  more  deputies 
to  assist  him  in  the  collection  of  taxes,  and  may  take  such  bond 
and  security  from  the  person  so  appointed,  as  he  deems  neces- 
sary for  his  indemnity,  and  the  collectors,  in  all  cases,  shall 
be  liable  and  accountable  for  his  proceedings  and  misconduct 
in  office.     See  Art.  2495e.     Sayles  R.  S.,  Art.  5161. 

§  977.     Rolls  to  be  warrant. 

When  the  collector  of  taxes  of  any  county  shall  have  re- 
ceived the  assessment  rolls  or  books  of  the  county,  he  shall 
receipt  to  the  commissioners'  court  for  the  same,  and  said 
rolls  or  books  shall  be  full  and  sufficient  authority  for  the 
county  collector  of  taxes  to  receive  and  collect  the  taxes  there- 
in levied.    Sayles"  R.  S.,  Art.  5162. 

§  978.     Collector  for  all  taxes. 

The  collector  of  taxes  shall  be  the  receiver  and  collector  of 
all  taxes  assessed  upon  the  tax  list  in  his  county,  whether 
assessed  for  the  state  or  the  county,  school,  poorhouse  or  other 
purpose,  and  he  shall  proceed  to  collect  the  same  according  to 


632  Taxation  in  Texas. 

law,  and  place  the  same  when  collected  to  the  proper  fund, 
and  pay  the  same  over  to  the  proper  authorities,  as  hereinafter 
provided. 

§  979.     Collections — When  to  begin. 

The  collector  of  taxes  of  each  county  shall  begin  the  col- 
lection of  taxes  annually  on  the  first  day  of  October,  or  so  soon 
thereafter  as  he  may  be  able  to  obtain  the  proper  assessment 
rolls,  books  or  data  upon  which  to  proceed  with  the  business ; 
and  he  shall  post  up  notices — not  less  than  three — at  public 
places  in  each  voting  or  magistrate's  precinct  in  his  county, 
at  least  twenty  days  previous  to  the  day  said  taxpayers  are 
required  to  meet  him  for  the  purpose  of  paying  their  taxes, 
stating  in  said  notice  the  times  and  places  the  same  are 
required  to  be  paid ;  and  it  shall  be  the  duty  of  said  collector, 
or  his  deputy,  to  attend  at  such  times  and  places  for  the  pur- 
poses aforesaid,  and  shall  remain  at  each  place  at  least  two 
days ;  and  if  the  collector  shall,  from  any  cause,  fail  to  meet 
the  taxpayers  at  the  time  and  place  specified  in  the  first  notice, 
he  shall,  in  like  manner,  give  a  second  notice.  Sayles  R.  S., 
Art.  5164. 

§  980.     Shall  keep  office  at  county  seat. 

The  collector  of  taxes  shall  keep  his  ofifice  at  the  county  seat 
of  his  county  and  it  shall  be  the  duty  of  every  person  who  has 
failed  to  attend  and  to  pay  his  taxes  at  the  times  and  places 
in  his  precinct  named  by  the  collector,  as  provided  in  the 
preceding  article,  to  call  at  the  office  of  the  collector  and  pay 
the  same  before  the  last  day  of  December  of  the  same  year  for 
which  the  assessment  is  made.     Sayles  R.  S.,  Art.  5165. 

§  981.     Tax  receipt  and  its  requisites. 

The  collector  of  taxes  or  his  deputy,  whenever  any  tax  is 
paid,  shall  give  to  the  person  paying  the  same  a  receipt  there- 
for, specifying  the  amount  of  state  ad  valorem  tax,  amount  of 
state  and  poll  tax,  the  amount  of  county  ad  valorem  tax,  the 
amount  of  county  poll  tax.  and  the  year  or  years  for  which  such 
tax  was  levied ;  said  receipt  shall  also  show  the  number  of 
acres  of  land  in  each  separate  tract,  number,  abstract  and  name 
of  the  original  grantee ;  the  said  receipt  shall  have  a  duplicate 
stub  showing  the  name  of  the  person,  the  date,  the  amount  of 


Tax  Collector.  633 

each  separate  tax  and  the  date  of  payment.  The  collector  of 
taxes  shall  provide  himself  with  a  seal,  on  which  shall  be  in- 
scribed a  star  with  five  points  surrounded  by  the  words  "Col- 
lector of  tax, county"  (the  blank  to  be  filled  with  the 

name  of  the  county),  and  shall  impress  said  seal  to  each  receipt 
given  by  him  for  taxes  collected  on  real  estate,  and  said  receipt 
having  the  seal  attached  shall  be  admissible  to  record  in  the 
county  in  which  the  property  is  situated  in  same  manner  as 
deeds  duly  authenticated,  and  when  so  recorded  shall  be  full 
and  complete  notice  to  all  persons  of  the  payment  of  said  tax. 
Sayles  R.  S.,  Art.  5166. 

§  982.     Quarterly  reports — Requisites  of — Duties  of  collector. 

1.  At  the  end  of  each  month  the  collector  of  taxes  shall, 
on  forms  to  be  furnished  by  the  comptroller  of  public  accounts, 
make  an  itemized  report  under  oath  to  the  comptroller,  show- 
ing each  and  every  item  of  ad  valorem,  poll  and  occupation 
taxes  collected  by  him  during  said  month,  accompanied  by  a 
summarized  statement  showing  full  disposition  of  all  state 
taxes  collected. 

2.  He  shall  present  such  report,  together  with  the  tax  re- 
ceipt stubs  to  the  county  clerk,  who  shall,  within  two  days, 
compare  said  report  with  said  stubs,  and  if  same  agree  in  every 
particular  as  regards  names,  dates,  and  amounts,  he  (the  clerk) 
shall  certify  to  its  correctness  for  which  examination  and  cer- 
tificate he  shall  be  paid  by  the  commissioners'  court  twenty- 
five  cents  for  each  certificate  and  twenty-five  cents  for  each 
two  hundred  taxpayers  on  said  report. 

3.  The  collector  of  taxes  shall  then  immediately  forward  his 
report^  so  certified  to  the  comptroller,  and  shall  pay  over  to 
the  state  treasurer  all  moneys  collected  by  him  for  the  state 
during  said  month,  excepting  such  amounts  as  he  is  allowed 
by  law  to  pay  in  his  county,  reserving  only  his  commissions 
on  the  total  amount  collected ;  and  to  enable  him  to  do  so  he 
may,  at  his  own  risk,  send  the  same  to  the  state  treasurer  at  the 
least  cost  to  the  state,  on  which  he  shall  be  allowed  credit  by 
the  comptroller  upon  filing  receipts  showing  actual  amount 
of  exchange  paid ;  provided,  that  the  state  treasurer  shall  ac- 
cept no  payment  other  than  money  orders  or  direct  cash  pay- 
ments, which  may  be  made  through  express  companies,  banks, 


634  Taxation  in  Texas. 

or  any  other  source.  The  state  treasurer  whenever  he  may 
receive  a  remittance  from  a  collector  of  taxes  shall  promptly 
pay  the  money  so  remitted  to  the  state  treasury  on  the  deposit 
warrant  of  the  comptroller,  and  the  money  when  so  deposited 
•shall  be  a  credit  to  the  said  collector  of  taxes.  Sayles  R.  S., 
Art.  5167. 

4.  The  collector  of  taxes  shall  pay  over  to  the  state  treas- 
urer all  balances  in  his  hands  belonging  to  the  state,  and 
finally  adjust  and  settle  his  account  with  the  comptroller  on  or 
before  the  first  day  of  May  of  each  year ;  and  to  enable  him  to 
do  so  the  commissioners'  court  shall  convene  on  or  before  the 
third  Monday  in  April  for  the  purpose  of  examining  and  ap- 
proving his  final  settlement  papers. 

5.  The  allowance  of  a  delinquent  and  insolvent  list  to  the 
collector  in  accordance  with  Article  5170  shall  not  absolve  any 
taxpayer  or  property  thereon  from  the  payment  of  taxes,  but 
it  shall  be  the  duty  of  the  collector  to  use  all  necessary  dili- 
gence to  collect  the  amounts  due  thereon  after  it  is  allowed  by 
the  commissioners'  court,  and  he  shall  issue  special  tax  re- 
ceipts therefor,  to  be  furnished  by  the  comptroller,  which  blank 
receipts  shall  be  numbered  and  charged  to  the  collector  who 
shall  account  for  same  at  his  next  annual  settlement,  in  the 
same  manner  as  occupation  tax  receipts ;  he  shall  also  make 
itemized  monthly  reports  of  such  collections,  using  special 
blanks  for  that  purpose. 

6.  To  enforce  the  prompt  and  speedy  collection  and  remit- 
tance of  taxes  and  to  provide  for  the  proper  accounting  of  sale, 
the  comptroller  shall  prescribe  and  furnish  the  forms  to  be 
used  by  collectors  of  taxes  and  the  mode  and  manner  of  keep- 
ing and  stating  their  accounts,  and  shall  adopt  such  regula- 
tions as  he  may  deem  necessary  in  regard  thereto.  It  shall 
be  his  imperative  duty  to  enforce  a  strict  observance  of  all 
the  provisions  of  these  articles. 

7.  It  shall  be  the  duty  of  the  comptroller  to  notify  the 
district  attorney  of  the  district,  or  the  county  attorney  of  the 
county  in  which  the  collector  resides,  and  the  sureties  on  the 
bond  of  the  collector  of  any  failure  to  comply  with  any  of  the 
provisions  of  this  article.    Sayles  R.  S.,  Art.  5168. 


Tax  Collector.  635 

§  983.     Make  report  to  commissioner's  court. 

1.  The  collector  of  taxes  shall,  at  the  end  of  each  month, 
make  like  reports  to  the  commissioners'  court  of  all  the  collec- 
tions made  for  the  county,  conforming  as  far  as  applicable  and 
in  like  manner  to  the  requirements  as  to  the  collection  and 
report  of  taxes  collected  for  the  state.  The  county  clerk  shall 
likewise,  within  two  days  after  the  presentation  of  said  report 
by  the  collector,  examine  said  report  and  stubs,  and  certify 
to  their  correctness  as  regards  names,  dates  and  amounts,  for 
which  examination  and  certificate  he  shall  be  paid  by  the  col- 
lector of  taxes  fifty  cents  each  month,  which  amount  shall  be 
allowed  to  the  collector  by  the  commissioners'  court. 

2.  The  clerk  shall  file  said  report  intended  for  the  commis- 
sioners' court,  together  with  the  tax  receipt  stubs,  in  his  office 
for  the  next  regular  meeting  of  the  commissioners'  court. 

3.  The  collector  of  taxes  shall  immediately  pay  over  to  the 
county  treasurer  all  taxes  collected  for  the  county  during  said 
month  after  reserving  his  commissions  for  collecting  the  same, 
and  take  receipts  therefor,  and  file  with  the  county  clerk. 

4.  At  the  next  regular  meeting  of  the  commissioners'  court, 
the  collector  of  taxes  shall  appear  before  said  court  and  make 
a  summarized  statement,  showing  the  disposition  of  all 
moneys,  both  of  the  state  and  county,  collected  by  him  during 
the  previous  three  months.  Said  statements  must  show  that 
all  taxes  due  the  state  have  been  promptly  remitted  to  the 
state  treasury  at  the  end  of  each  month,  and  all  taxes  due 
the  county  have  been  paid  over  promptly  to  the  county  treas- 
urer, and  shall  file  proper  vouchers  and  receipts  showing  same. 

5.  The  commissioners'  court  shall  examine  such  statement 
and  vouchers,  together  with  the  itemized  report  and  tax  re- 
ceipt stubs  filed  each  month,  and  shall  compare  the  same  with 
the  tax  rolls  and  tax  receipt  stubs.  If  found  correct  in  every 
particular,  and  if  the  collector  of  taxes  has  properly  accounted 
for  all  taxes  collected,  as  provided  above,  the  commissioners' 
court  shall  enter  an  order  approving  said  report,  and  the  order 
approving  same  shall  be  recorded  in  the  minutes,  as  other  pro- 
ceedings of  said  court. 

6.  The  collector  of  taxes  shall  finally  adjust  and  settle  his 
account  with  the  commissioners'  court  for  the  county  taxes  col- 
lected, at  the  same  time  and  in  the  same  manner  as  is  pro- 


636  Taxation  in  Texas. 

vided  in  the  foregoing  article  in  his  settlement  with  the  state. 

If  any  collector  of  taxes  shall  have  failed  at  the  end  of 
each  month,  or  within  three  days  thereof,  to  promptly  remit 
to  the  state  treasurer,  the  amount  due  by  him  to  the  state,  or 
pay  over  to  the  county  treasurer  the  amount  due  by  him  to  the 
county,  the  commissioners'  court,  at  the  next  regular  meeting, 
shall  ascertain  the  facts,  and  if  the  collector  of  taxes  fails  or 
refuses  to  pay  or  remit  the  same  and  file  proper  vouchers  there- 
for, as  provided  in  the  foregoing  article,  the  commissioners' 
court  shall  not  approve  ihis  reports  and  accounts,  but  shall 
ascertain  the  amounts  due  by  him,  both  to  the  state  and  coun- 
ty, and  enter  an  order  requiring  him  to  pay  the  same  to  the 
proper  treasurers,  as  is  provided  in  Articles  5210  and  5211  of 
the  Revised  Statutes  and  notify  such  collector  as  is  provided 
for  in  Article  4769a,  Section  3  (5212  infra),  under  penalty  for 
failure  to  do  so,  in  Section  4  of  said  article. 

Whenever  the  collector  of  taxes  shall  fail  or  refuse  to  remit 
to  the  state  treasurer  the  amounts  due  the  state,  when  re- 
quested, the  comptroller  shall  notify  him  under  Article  4769a, 
Sections  3,  4,  5  and  7.    Sayles  R.  S.,  Art.  5169. 

§  984.     List  of  delinquents  and  insolvents  to  be  made  out. 

The  collector  of  taxes  shall  make  out  on  forms,  to  be  fur- 
nished for  that  purpose  by  the  comptroller  of  public  accounts, 
between  April  1  and  15  of  each  year,  lists  of  delinquent  or  in- 
solvent taxpayers,  the  caption  of  which  shall  be  the  "list  of 
delinquent  or  insolvent  taxpayers."  In  this  list  he  shall  give 
the  name  of  the  person,  firm,  company,  or  corporation  from 
whom  the  taxes  are  due,  in  separate  columns,  and  he  shall 
post  on€  copy  of  these  delinquent  or  insolvent  lists  at  the 
courthouse  door  of  the  county,  and  one  list  at  the  courthouse 
door,  or  where  the  court  is  usually  held  in  each  justice  precinct 
in  his  county ;  and  the  collector  of  taxes,  upon  the  certificate 
of  the  commissioners'  court  that  the  persons  appearing  on  the 
insolvent  or  delinquent  lists  have  no  property  out  of  which 
to  make  the  taxes  assessed  against  them  or  that  they  have 
moved  out  of  the  county,  and  that  no  property  can  be  found  in 
the  county  belonging  to  such  persons,  out  of  which  to  make  the 
taxes  due,  shall  be  entitled  to  a  credit  on  final  settlement  of 
his  accounts  for  the  amounts  due  by  the  persons,  firms,  com- 


Tax  Collector.  637 

p.  90.     Sayles  R.  S.,  Art.  5170. 

panics,  or  corporations  certified  to  by  the  commissioners'  court 

as  above  prescribed  for.    Acts  1887,  p.  127;  Amend.  Acts  1893, 

§  985.     Collector  to  endeavor  to  collect  delinquent  taxes. 

The  allowance  of  any  insolvent  list  to  the  collector  in  ac- 
cordance with  the  provisions  of  the  preceding  article,  shall  not 
absolve  any  taxpayer  or  property  thereon  from  the  payment 
of  taxes,  but  it  shall  be  the  duty  of  the  collector  to  use  all 
necessary  diligence  to  collect  the  amounts  due  on  the  insolvent 
list  after  it  is  allowed,  and  report  and  pay  over  to  the  proper 
officers  all  amounts  collected  on  the  same.  Sayles  R.  S., 
Art.  5171. 

§  986.     Non-residents. 

Non-residents  of  counties,  owing  state  or  county  taxes,  are 
hereby  authorized  to  pay  the  same  to  the  comptroller  of  public 
accounts ;  provided,  that  all  taxes  due  by  said  non-residents 
shall  be  paid  at  the  comptroller's  office  on  or  before  the  first 
day  of  January  next  after  the  assessment  of  such  taxes ;  pro- 
vided further,  that  the  collectors  of  taxes  shall  be  entitled  to 
the  commissions  of  all  moneys  paid  by  the  non-residents  to 
the  comptroller  of  public  accounts,  due  their  counties  re- 
spectively.   Sayles  R.  S.,  Art.  5172. 

§  987.     Forced  collections  to  begin  when. 

If  any  person  shall  fail  or  refuse  to  pay  the  taxes  imposed 
upon  him  or  his  property  by  law,  until  the  first  day  of  Jan- 
uary next  succeeding  the  return  of  the  assessment  roll  of  the 
county  to  the  comptroller,  the  collector  of  taxes,  shall  by  virtue 
of  his  tax  roll,  seize  and  levy  upon,  and  sell  so  much  personal 
property  belonging  to  such  person  as  may  be  sufficient  to  pay 
his  taxes,  together  with  all  costs  accruing  thereon;  provided, 
there  shall  be  no  levy  on  property  when  the  owner  thereof  has 
the  right  to  pay  at  the  comptroller's  office,  until  a  list  of  the 
persons  who  have  paid  their  taxes  at  said  office  has  been  fur- 
nished the  collector  of  taxes  by  the  comptroller.  The  comp- 
troller shall  forward  said  list  of  paid  taxes  on  or  before  the 
first  day  of  February  of  each  year,  and  the  tax  collector  shall 
immediately  on  receipt  of  said  list  from  the  comptroller,  levy 


638  Taxation  in  Texas. 

on  and  sell  the  property  of  suoh  non-residents  as  have  not  paid 
their  taxes,  in  accordance  with  the  law  regulating  the  sale  of 
property  for  taxes.    Sayles  R.  S.,  Art.  5173. 

§  988.     Collector  to  file  complaint  when. 

It  shall  be  the  duty  of  the  tax  collector  to  make  an  affidavit 
before  any  justice  of  the  peace  against  any  person,  firm  or 
association  of  persons  engaged  in  or  pursuing  any  occupation 
on  which,  under  the  laws  of  this  state,  a  tax  is  imposed,  who 
fails  or  refuses  to  pay  the  same.     Sayles  R.  S.,  Art.  5202. 

§  989.     Compensation. 

There  shall  be  paid  for  the  collection  of  taxes,  as  compensa- 
tion for  the  services  of  the  collector,  beginning  with  the  first 
day  of  December  of  each  year,  five  per  cent,  on  the  first  ten 
thousand  dollars  collected  for  the  state,  and  four  per  cent,  on 
the  next  ten  thousand  dollars  collected  for  the  state,  and  one 
per  cent,  on  all  collected  over  that  sum. 

For  collecting  the  county  taxes,  five  per  cent,  on  the  first 
five  thousand  dollars  of  such  taxes  collected,  and  four  per  cent, 
on  the  next  five  thousand  dollars  collected,  and  one  and  one- 
fourth  per  cent,  on  all  such  taxes  collected  over  that  «um,  and 
in  counties  owing  subsidies  to  railroads,  the  collectors  shall 
receive  only  one  per  cent,  for  collecting  such  railroad  tax. 

And  in  cases  where  property  is  levied  upon  and  sold  for 
taxes,  he  shall  receive  the  same  compensation  as  allowed  by 
law  to  sheriffs  or  constables  upon  making  a  levy,  and  sale 
in  similar  cases,  but  in  no  case  to  include  commissions  on  such 
sales.  (Acts  1895,  p.  180;  1897  S.  S.,  pp.  5,  9.)  Sayles  R.  S., 
Art.  5206. 

§  990.     For  occupation  tax. 

On  all  occupation  and  license  taxes  collected,  five  per  cent. 
(Acts  1883,  pp.  101,  102;  1897  S.  S.,  p.  5,  part  of  9.)  Sayles  R. 
S.,  Art.  5207. 

§  991.     Fees  to  be  retained. 

The  maximum  amount  of  fees  of  all  kinds  that  may  be  re- 
tained by  the  tax  collector  of  state  and  county  taxes  shall  be 
an  amount  not  exceeding  $2,000.00  per  annum,  and  in  addition 
thereto  one-fourth  of  the  excess  of  the  fees  collected  by  him. 
Sayles  R.  S.,  Art.  2495c ;  Act  1897,  p.  42. 


Tax  Collector.  639 

§  992.     Fees  less  than  maximum — Statements  of  fees  collected 
— Excess  to  be  paid  into  county  treasury. 

The  amounts  allowed  to  each  officer  mentioned  in  Article 
2495c  may  be  retained  out  of  the  fees  collected  by  him  under 
existing  laws;  but  in  no  case  shall  the  state  or  the  county 
be  responsible  for  the  payment  of  any  sum  when  the  fees  col- 
lected by  any  officer  are  less  than  the  maximum  compensation 
allowed  by  this  chapter,  or  be  responsible  for  the  pay  of  any 
deputy  or  assistant.  Each  officer  mentioned  in  the  preceding 
article,  and  also  the  sheriff,  shall,  at  the  close  of  each  fiscal 
year,  make  to  the  district  court  of  the  county  in  which  he 
resides  a  sworn  statement  showing  the  amount  of  fees  col- 
lected by  him  during  the  fiscal  year,  and  the  amount  of  fees 
charged,  and  not  collected,  and  by  whom  due  and  the  number 
of  deputies  and  assistants  employed  by  him  during  the  year 
and  all  the  amounts  paid  or  to  be  paid  each ;  and  all  fees  col- 
lected by  officers  named  in  Article  2495c  during  the  fiscal  year, 
in  excess  of  the  maximum  amount  allowed  and  of  the  one- 
fourth  of  the  excess  of  the  maximum  amount  allowed  for  their 
services,  and  for  the  services  of  their  deputies  or  assistants 
hereinafter  provided  for,  shall  be  paid  to  the  county  treasurer 
of  the  county  where  the  excess  accrued ;  provided,  that  any 
officer  in  Article  2495c  who  does  not  collect  the  maximum 
amount  of  his  fees  for  any  fiscal  year,  and  who  reports  delin- 
quent fees  for  that  year,  shall  be  entitled  to  retain  when  col- 
lected, such  part  of  such  delinquent  fees  as  is  sufficient  to  com- 
plete the  maximum  compensation  for  the  year  in  which  delin- 
quent fees  were  charged,  and  also  to  retain  the  one-fourth  of 
the  excess  belonging  to  him  and  the  remainder  of  the  delin- 
quent fees  for  that  fiscal  year  shall  be  paid  as  hereinbefore  pro- 
vided for  when  collected.    Sayles  R.  S.,  Art.  2495d. 

§  993.     Deputies  and  assistants,  appointment  and  compensa- 
tion. 

Whenever  any  officer  named  in  Article  2495c  shall  require 
the  service  of  deputies  or  assistants  in  the  performance  of  his 
duties  he  shall  apply  to  the  county  judge  of  his  county  for  author- 
ity to  appoint  same,  and  the  county  judge  shall  issue  an 
order  authorizing  the  appointment  of  such  a  number  of 
deputies  or  assistants  as  in  his  opinion  may  be  necessary  for 


640  Taxation  in  Texas. 

the  efficient  performance  of  the  duties  of  said  officer.  The 
officer  applying  for  appointment  of  a  deputy  or  assistant  or 
deputies  or  assistants,  shall  make  affidavit  that  they  are  neces- 
sary for  the  efficiency  of  the  public  service,  and  the  county 
judge  may  require,  in  addition,  a  statement  showing  the  need 
of  such  deputies  or  assistants,  shall  make  affidavit  that  they  are 
necessary  for  the  efficiency  of  the  public  service,  and  the  county 
judge  may  require,  in  addition,  a  statement  showing  the  need 
of  such  deputies  or  assistants,  and  in  no  case  shall  the  county 
judge  attempt  to  influence  the  appointment  of  any  person  as 
deputy  or  assistant  in  any  office.  The  maximum  amount  al- 
lowed for  deputies  or  assistants  for  their  services  shall  be  as 
follows,  to-wit : 

First  assistant  or  chief  deputy,  a  sum  not  to  exceed  a  rate 
of  $1,200.00  per  annum,  others  not  to  exceed  a  rate  of  $900.00 
per  annum. 

The  county  judge  in  issuing  his  order  granting  authority 
to  appoint  deputies  or  assistants,  shall  state  in  such  order  the 
number  of  deputies  or  assistants  authorized  and  the  amount  to 
be  paid  each,  and  the  amount  of  compensation  allowed  shall 
be  paid  out  of  the  fees  of  office  to  which  said  deputies  or  as- 
sistants may  be  appointed,  and  shall  not  be  included  in  esti- 
mating the  maximum  salaries  of  officers  named  in  Article 
2495c.     Sayles  R.  S.,  Art.  2495e. 

§  994.     Collection  of  delinquent  fees — Fees  not  to  be  remitted. 

All  fees  due  and  not  collected  as  shown  in  the  report  required 
by  Article  2495d  shall  be  collected  by  the  officer  to  whose 
office  the  fees  accrued  and  out  of  such  part  of  delinquent  fees 
as  may  be  due  the  county,  the  officer  making  such  collection 
shall  be  entitled  to  ten  per  cent,  of  the  amount  collected  by 
him,  and  the  remainder  shall  be  paid  into  the  county  treasury, 
as  provided  in  Article  2495d.  It  shall  not  be  legal  for  any 
officer  to  remit  any  fee  that  may  be  due  under  the  law  fixing 
fees.    Sayles  R.  S.,  Art.  2495f. 

§  995.     Penalty  for  failure  to  charge  up  fees,  or  for  remission 
of  fees,  etc. 

Any  officer  named  in  Article  2495c,  and  also  the  sheriff,  who 
shall  fail  to  charge  up  the  fees  or  costs  that  may  be  due  under 
existing  laws,  or  who  shall  remit  any  fee  that  may  be  due  under 


Tax  Collector.  641 

the  laws,  or  wlio  shall  fail  to  make  the  report  required  in  Article 
2495d,  or  who  shall  pay  his  deputy  or  assistant  a  less  sum  than 
the  amount  specified  in  his  sworn  statement,  or  receive  back  any 
part  of  such  compensation  allowed  such  deputy  or  assistant  as  a 
rebate  shall  be  deemed  guilty  of  a  misdemeanor  and  on  conviction 
thereof  shall  be  fined  in  any  sum  not  less  than  $25  nor  more  than 
$500.  Each  act  forbidden  in  this  article  shall  constitute  a  separate 
offense.    Sayles  R.  S.,  Art.  2495g. 

§  996.     Payment  of  ex-officio  services. 

It  is  not  intended  by  this  chapter  that  the  commissioners'  court 
shall  be  debarred  from  allowing  compensation  for  ex-officio  serv- 
ices to  county  officials  not  to  be  included  in  estimating  the  max- 
imum provided  for  in  this  chapter  when  in  their  judgment  such 
compensation  is  necessary;  provided  such  compensation  for  ex- 
officio  services  shall  not  exceed  the  amounts  now  allowed  under 
the  law  for  ex-officio  services;  provided  further,  the  fees  allowed 
by  law  to  district  and  county  clerks,  county  attorneys  and  tax 
collectors  in  suits  to  collect  taxes  shall  be  in  addition  to  the  max- 
imum salaries  fixed  by  this  chapter.    Sayles  R.  S.,  Art.  2495h. 

§  997.     Officers  to  keep  a  correct  statement — Accounts  to  be 
examined  by  the  grand  jury. 

It  shall  be  the  duty  of  those  officials,  named  in  Article  2495c, 
and  also  the  sheriffs,  to  keep  a  correct  statement  of  the  sums 
coming  into  their  hands  as  fees  and  commissions,  in  a  book  to 
be  provided  by  them  for  that  purpose,  in  which  the  officer  at  the 
time  when  any  fees  or  moneys  shall  come  into  his  hands  shall 
enter  the  same,  and  it  shall  be  the  duty  of  the  grand  jury  (and 
the  district  judge  shall  so  charge  the  grand  jury)  to  examine 
these  accounts  at  the  session  of  the  district  court  next  succeeding 
the  first  day  of  December  of  each  year,  and  make  a  report  on 
same  to  the  district  court  at  the  conclusion  of  the  session  of  the 
grand  jury.    Sayles  R.  S.,  Art.  2495i. 

§  998.     Certain  officers  not  required  to  make  a  report  or  keep  a 
statement. 

The  officers  named  in  Article  2495c,  in  those  counties  having 
a  population  of  fifteen  thousand,  or  less,  shall  not  be  required  to 
make  a  report  of  fees  as  provided  in  Article  2495d,  or  to  keep  a 
statement  provided  for  in  Article  24951;  the  population  of  the 

41 


642  Taxation  in  Texas. 

county  to  be  determined  by  the  vote  cast  at  the  next  preceding 
presidential  election,  on  the  basis  of  five  inhabitants  for  each  vote 
cast  at  such  election ;  provided,  that  all  district  attorneys  shall  be 
required  to  make  the  reports  and  keep  the  statements  required 
in  this  chapter.    Sayles  R.  S.,  Art.  2495 j. 

§  999.     Statement  by  tax  collector  and  assessor. 

The  tax  collector  and  tax  assessor,  at  the  time  of  their  settle- 
ment of  accounts  with  the  comptroller,  shall  file  with  him  a  copy 
of  the  sworn  statement  required  under  Article  2495d.  Sayles  R. 
S.,  Art.  2495k. 

§  1000.     Fiscal  year — At  what  times  reports  must  be  made 
and  by  whom. 

A  fiscal  year  within  the  meaning  of  this  chapter  shall  begin  on 
December  1,  of  each  year,  and  each  officer  named  in  Article 
2495c,  and  also  the  sheriff  shall  file  the  reports  and  make  the 
settlement  required  in  this  chapter  on  December  1,  of  each  year. 
Whenever  such  officer  serves  for  a  fractional  part  of  a  fiscal  year, 
he  shall  nevertheless  file  his  report  and  make  a  settlement  for 
such  part  of  a  year  as  he  serves,  and  shall  be  entitled  to  such 
proportional  part  of  the  maximum  allowed  as  the  time  of  his 
services  bears  to  the  entire  year.  However,  an  incoming  officer 
elected  at  the  general  election,  who  qualifies  prior  to  December  1 
next  following,  shall  not  be  required  to  file  any  report  or  make 
any  settlement  before  December  1,  of  the  following  year,  but  his 
report  and  settlement  shall  embrace  the  entire  period  dated  from 
his  qualification.  This  act  shall  take  effect  and  be  in  force  from 
and  after  December  1,  1897.    Sayles  R.  S.,  Art.  24951. 

§  1001.     Compensation  for  one  levy  only,  etc. 

In  making  levies  upon  different  tracts  of  land  belonging  to  the 
same  individual,  corporation  or  company,  the  collector  shall  be 
entitled  to  charge  for  only  one  levy ;  and  in  all  cases  of  adver- 
tisement of  lands  for  tax  sales  shall  be  entitled  to  charge  for 
any  one  tract  the  exact  proportion  of  the  amount  paid  for  the 
whole  advertisement  which  said  tract  bears  to  all  other  tracts 
advertised,  and  no  more.  And  for  any  greater  charge  under  this 
article  the  collector  shall  be  deemed  guilty  of  extortion  and  be 
punished  as  provided  in  the  Penal  Code.    Sayles  R.  S.,  Art.  5208. 


Tax  Collector.  643 

§  1002.     Payments  of  moneys. 

All  tax  collectors  and  other  officers  or  appointees  authorized 
to  receive  public  moneys  shall  account  for  all  moneys  in  their 
hands  belonging  to  the  state,  and  pay  the  same  over  to  the  state 
treasurer  whenever  and  as  often  as  they  may  be  directed  so  to  do 
by  the  comptroller  of  public  accounts ;  provided,  that  tax  col- 
lectors shall  have  thirty  days  from  the  date  of  such  direction 
within  which  to  comply  with  the  same.     Sayles  R.  S.,  Art.  5210. 

All  tax  collectors  and  other  officers  or  appointees  authorized 
to  receive  public  moneys  shall  account  for  all  moneys  in  their 
hands  belonging  to  their  respective  counties,  cities  or  towns,  and 
pay  the  same  over  to  the  respective  county  treasurers  and  city 
treasurers,  whenever  and  as  often  as  they  may  be  directed  so  to 
do  by  the  respective  county  judges,  or  county  commissioners' 
courts,  or  mayor  or  board  of  aldermen ;  provided  that  tax  col- 
lectors shall  have  ten  days  from  the  date  of  such  direction  with- 
in which  to  comply  with  the  same.    Sayles  R.  S.,  Art.  5211. 

§  1003.     Notification  to  pay,  etc. 

The  notification  and  direction  provided  for  in  the  two  preced- 
ing articles  may  be  verbal,  written,  or  by  telegram ;  and  if  written 
or  by  telegram,  proof  of  the  deposit  in  the  postoffice  or  telegraph 
office  of  such  notification  and  direction,  with  postage  or  charges 
duly  prepaid  and  correctly  addressed,  shall  be  prima  facie  evi- 
dence of  the  fact  of  such  notification  and  direction  having  been 
given,  and  of  the  time  when  the  same  was  given.  Sayles  R.  S., 
Art.  5212. 

§  1004.     Tax  collector  to  prepare  delinquent  tax  record. 

It  is  provided  by  the  Acts  of  1895  and  1897  that  it  shall  be  the 
duty  of  the  commissioners'  court  of  each  county  in  this  state  im- 
mediately upon  the  taking  effect  of  the  act  to  cause  to  be  pre- 
pared by  the  tax  collector  at  the  expense  of  the  county  (the  com- 
pensation for  making  out  the  delinquent  tax  record  to  be  fixed 
by  the  commissioners'  court)  a  list  of  all  lands,  lots  or  parts  of 
lots  sold  to  the  state  for  taxes  since  the  first  day  of  January,  1885, 
and  which  have  not  been  redeemed  in  their  respective  counties, 
and  unorganized  counties  attached  thereto,  and  to  have  such  lists 
recorded  in  books  to  be  called  the  "Delinquent  Tax  Record," 
showing  when  the  lands  or  lots  were  reported  delinquent  or  sold 
to  the  state  for  taxes,  also  the  name  of  the  owner  at  the  time 
of  such  sale  or  delinquency,  if  known,  the  number  of  acres,  the 


644  Taxation  in  Texas. 

amount  of  taxes  due,  when  first  sold  and  the  amount  of  all  taxes 
assessed  against  the  owner  thereof  and  returned  delinquent  for 
each  year  as  shown  by  the  records  of  the  tax  collector's  office 
and  in  making  up  the  list  or  lists  contemplated  herein,  corrections 
and  omissions  in  the  description  of  any  real  estate  embraced  in 
such  lists  or  list  shall  be  made,  so  that  when  the  corrections  are 
made  and  the  omissions  supplied,  the  description  will  be  such  as 
is  given  in  the  abstracts  of  all  the  titled  and  patented  lands  in 
the  state  of  Texas,  and  it  shall  be  required  in  bulk  assessments, 
to  apportion  to  each  tract  or  lot  of  land  separately,  its  pro  rata 
share  of  the  entire  tax  penalty  and  costs.  Acts  1897,  p.  132, 
Sec.  3 ;  Sayles  R.  S.,  Art.  5232c. 

§  1005.     Collector's  fees  under  delinquent  tax  acts. 

The  collector  of  taxes,  for  preparing  the  delinquent  list  and 
separating  the  property  previously  sold  to  the  state  from  that 
reported  to  be  sold  as  delinquent  for  the  preceding  year,  and  cer- 
tifying the  same  to  the  commissioners'  court,  shall  be  entitled  to 
a  fee  of  one  dollar  for  each  correct  assessment  of  the  land  sold, 
said  fee  to  be  taxed  as  costs  against  the  delinquent.  Acts  1897, 
p.  136,  Sec.  9;  Sayles  R.  S.,  Art.  5232i. 

§  1006.  Duty  of  the  tax  collector  to  collect  and  prepare  lists 
each  year  under  the  delinquent  tax  act. 
If  no  personal  property  be  found  for  seizure  and  sale  as  is  pro- 
vided for,  the  collector  shall,  on  the  31st  day  of  March  of  each 
year  for  which  the  state  and  county  taxes,  for  the  preceding  year 
only  remain  unpaid,  make  up  a  list  of  the  lands  and  lots  on  which 
the  taxes  for  such  preceding  year  are  delinquent,  charging  against 
the  same  all  taxes  and  penalties  assessed  against  the  owner  there- 
of. Said  list  shall  be  made  in  triplicate  and  shall  be  presented 
to  the  commissioners'  court  for  examination  and  corrections  of 
any  errors  that  may  appear,  and  when  so  examined  and  corrected 
by  the  commissioners'  court,  such  lists  in  triplicate  shall  be  ap- 
proved by  said  court,  and  one  copy  thereof  shall  be  filed  with 
the  county  clerk,  and  one  copy  retained  and  preserved  by  the  col- 
lector, and  one  copy  forwarded  to  the  comptroller,  with  his  an- 
nual settlement  reports.  When  such  list  of  lands  and  lots  delin- 
quent for  the  preceding  year  only,  is  corrected,  as  provided  for, 
then  such  list  shall  be  advertised  by  the  commissioners'  court 
causing  the  same  to  be  published  in  some  newspaper  published  in 


Tax  Collector.  645 

the  county,  for  three  cons^ecutive  weeks;  but  if  no  newspaper  is 
published  in  the  county  then  one  outside  of  the  county,  and  after 
such  advertisement,  suit  shall  be  instituted  against  delinquents  for 
all  taxes  and  penalties  due.  Acts  1897,  Sec.  10,  p.  137;  Sayles  R. 
S.,  Art.  5232J. 

§  1007.     Must  account  for  taxes  collected  whether  valid  or  not. 

When  an  officer  has  collected  taxes  for  the  state,  under  color 
of  legal  authority,  or  under  pretense  that  he  is  authorized  to  do 
so,  he  will  not  be  heard  to  controvert  the  validity  of  the  law  or 
authority  under  which  he  has  acted,  or  dispute  the  right  of  the 
state  to  the  money  thus  coming  into  his  hands.  Morris  v.  State, 
47  Tex.  583. 

§  1008.     Application  of  payment. 

The  rule  between  parties  acting  in  their  own  right  does  not 
obtain  between  the  collecting  officers  of  the  state  and  their  se- 
curities, and  the  accounting  officer  of  the  state,  taxes  collected 
and  paid  into  the  treasury  can  not  lawfully  be  applied  to  the 
discharge  of  a  pre-existing  debt  of  the  tax  collector  on  a  former 
account.  The  collector  can  not  authorize  it,  nor  can  the  comp- 
troller apply  it  to  the  injury  of  the  sureties  of  the  collector. 
That  the  comptroller  was  ignorant  of  the  source  from  which  funds 
have  been  received,  which  have  been  by  him,  without  instruction 
from  the  collector,  applied  to  his  indebtedness  for  taxes  for 
former  years,  does  not  deprive  the  sureties  of  the  benefit  of  the 
payment  of  such  funds  into  the  treasury  by  their  principal.  The 
contract  of  the  sureties  upon  a  tax  collector's  bond  is  that  the  col- 
lector shall  pay  into  the  state  treasury,  either  directly  or  indi- 
rectly, all  funds  which  he  might  collect.  State  of  Texas  v.  Mid- 
dleton  Sureties,  57  Tex.  185. 

§  1009.     Duty  of  tax  collector  when  delinquent  has  no  prop- 
erty in  county  out  of  which  taxes  can  be  collected. 

That  whenever  it  shall  appear  to  the  collector  of  taxes  in  any 
county  in  this  state  that  any  person  who  is  a  delinquent  in  the 
payment  of  his  or  her  taxes,  has  no  property  in  his  county  out  of 
which  said  amount  of  taxes  can  be  collected,  it  shall  be  the  duty 
of  such  collector  to  make  out  from  the  assessment  list  a  true  and 
complete  list  or  schedule  of  the  taxes  due  by  said  delinquent, 
which  shall  be  certified  to  under  the  official  seal  and  signature  of 


646  Taxation  in  Texas. 

said  collector,  and  to  forward  the  same  to  the  collector  of  taxes 
of  any  county  or  counties  where  he  shall  have  reason  to  believe 
said  delinquent  has  property  of  any  description,  and  if  said  prop- 
erty is  in  any  of  the  unorganized  counties  of  this  state,  then  to 
the  collector  of  the  county  to  which  said  unorganized  county  is 
attached  for  judicial  purposes,  and  when  received  by  said  col- 
lector, he  shall  at  once  proceed  to  the  collection  of  said  tax  by 
seizure  and  sale,  in  the  same  manner  as  if  said  taxes  were  orig- 
inally assessed  and  due  in  his  said  county,  and  shall  report  to  the 
collector  from  whom  said  list  was  received  the  taxes  so  collected 
by  him. 

No  tax  collector  in  this  state  shall  be  allowed  credit  for  lists 
of  delinquent  or  insolvent  taxpayers,  as  provided  by  Article  5170 
of  the  Revised  Statutes  of  this  state,  until  he  makes  oath  in  writ- 
ing that  he  has  exhausted  all  resources  to  collect  said  delinquent 
taxes  under  this  act,  and  under  Section  10  of  Acts  of  the  Twen- 
ty-fifth Legislature.  Regular  Session,  Chapter  103 ;  and  under 
Articles  5173,  5174,  5175,  and  5175a  of  the  Revised  Statutes  of 
this  state.    Acts  1905,  p.  317. 

§  1010.     Receipts  to  creditors. 

Where  a  tax  collector  issued  receipts  to  his  creditors  for  taxes 
which  he  did  not  collect,  the  sureties  on  his  bond  were  liable  there- 
for. Ward  V.  Marion  County,  62  S.  W.  557,  26  Tex.  Civ.  App. 
361. 

§1011.     City  bonds. 

Under  Rev.  St.  1895,  Art.  5234,  providing  that  all  taxes  for 
the  payment  of  bonds  issued  by  cities  to  aid  in  the  construction 
of  railroads  and  other  internal  improvements  shall  be  assessed 
and  collected  by  the  officers  whose  duty  it  is  to  collect  and  assess 
other  municipal  taxes,  and  Article  5235,  providing  that  such  offi- 
cer shall  give  bond,  with  two  or  more  sufficient  sureties,  payable 
to  the  state  and  conditioned  for  the  faithful  assessing,  collecting 
and  paying  over  of  such  tax  into  the  state  treasury  as  provided  by 
law,  a  city  has  no  right  of  action  on  the  bond  of  its  tax  collector 
for  a  claim  arising  from  the  collection  of  such  taxes.  House  et  al. 
V.  City  of  Dallas,  74  S.  W.  901,  96  Tex.  594. 

§  1012.     Rolls  must  be  delivered. 

Under  R.  S.  1895,  Arts.  5159  and  5164,  held  that  the  tax  col- 
lector has  no  authority  to  collect  taxes  before  the  assessment 


Tax  Collector.  647 

rolls  are  delivered  to  him,  and  having  done  so  and  not  turned  them 
over  to  the  county,  the  taxpayers  are  still  liable.  Orange  Co.  v. 
T.  &  N.  O.  Ry.  Co.,  80  S.  W.  670,  35  Tex.  Civ.  App.  361. 

§  1013.     Parties  to  suit  on  bond. 

Though  the  official  bond  of  a  county  tax  collector  required  to 
be  given  for  the  faithful  discharge  of  his  duties  in  regard  to 
taxes  due  the  county,  is  required  by  statute  to  be  made  payable 
to  the  county  judge,  no  matter  to  whom  it  may  through  mis- 
take have  been  made  payable,  an  action  may  be  maintained  in 
the  name  of  such  person  for  the  use  of  the  county  for  breach 
of  its  conditions.  To  maintain  such  an  action,  however,  unless 
the  bond  on  its  face  relates  to  taxes  due  the  county,  the  mistake 
as  to  the  name  of  the  obligee  must  be  alleged  and  proved.  That 
it  was  made  payable  to  the  governor  and  filed  in  the  county  clerk's 
office,  is  not  of  itself  sufficient  evidence  of  such  mistake.  King 
V.  Ireland,  68  Tex.  682. 

§  1014.     Evidence  in  suit  on  bond. 

In  a  suit  against  a  collector  of  taxes,  the  county  ledger  re- 
quired by  the  statute  to  be  kept  is  not  admissible  in  evidence  to 
show  the  state  of  the  collector's  account  with  the  county.  The 
entries  therein  to  the  debit  of  the  collector,  made  from  the  re- 
ceipts for  the  tax  rolls,  would  be  inadmissible,  though  his  re- 
ceipts would  be.  In  such  a  suit  it  is  unnecessary  for  the  plain- 
tiff to  prove  the  election  of  the  defendant  as  tax  collector,  when 
the  bond,  which  is  the  basis  of  the  action,  recites  that  he  is  the 
tax  collector;  the  signatures  of  the  collector,  and  of  the  sureties 
to  the  bond,  estop  them  from  denying  his  official  character.  King 
V.  Ireland,  68  Tex.  682. 

§  1015.     Suit  against  defaulting — Pleadings — Interest. 

The  proper  practice  in  suits  against  defaulting  officers,  for  a 
failure  to  pay  over  public  funds  that  have  come  into  their  hands, 
where  interest  is  sought  to  be  recovered,  is  to  state  fully  the  facts, 
giving  the  specific  amounts,  and  the  dates  of  collection  of  the 
various  sums  of  money  upon  which  the  claim  for  interest  is 
based. 

By  the  twenty-third  section  of  the  Act  of  August  21,  1876  (R, 
S.,  Art.  4762),  the  tax  collector  is  required  to  pay  over  to  the 
county  treasurer,   reserving  his  commissions,  whenever  he  has 


648  Taxation  in  Texas. 

collected  as  much  as  $500.  A  judgment  against  a  defaulting  tax 
collector  should  recite  the  date  from  which  interest  is  allowed 
is  calculated  on  public  money  collected.  Timon  v.  San  Patricio 
County,  58  Tex.  263. 

§  1016.  Collection  by  authorized  party  is  collection  by  county. 
When  a  county  places  in  the  hands  of  the  person  by  law  au- 
thorized to  collect  and  receive  taxes  process  directing  him  to 
collect  "and  receive  taxes  for  it,  a  collection  made  by  such  person 
is  received  by  the  county.  Galveston  County  v.  Galveston  Gas 
Company,  10  S.  W.  583,  72  Tex.  509. 

§  1017.     Suspension. 

Such  provision  of  the  constitution,  authorizing  the  district 
judge  to  remove  a  county  officer  only  on  the  verdict  of  a  jury, 
does  not  render  a  statute  unconstitutional  authorizing  the  judge 
to  temporarily  suspend  a  county  officer  without  such  verdict, 
pending  proceedings  for  his  removal. 

Where  the  district  judge  exercised  the  power  conferred  upon 
him  by  such  statute,  of  suspending  a  county  officer  pending  pro- 
ceedings for  his  removal,  an  appeal  from  a  subsequent  judgment 
of  removal,  and  the  execution  of  a  supersedeas  bond,  had  no  ef- 
fect on  the  order  of  suspension.  Poe  v.  State,  10  S.  W.  737,  72 
Tex.  625. 

§  1018.     Additional  bond. 

Under  Rev.  St.  Tex.,  Art.  4733,  providing  that  tne  commis- 
sioners' court  may  require  a  tax  collector  to  furnish  a  new  bond, 
whenever  such  a  proceeding  is  deemed  advisable  by  the  court,  a 
tax  collector  may  be  required  to  give  a  new  bond  without  first 
having  been  cited  to  appear  and  show  cause.  Poe  v.  State,  10 
S.  W.  737,  72  Tex.  625. 

§  1019.     Removal  from  office. 

Const.  Tex.,  Art.  5,  Sec.  24,  providing  that  county  officers  may 
be  removed  for  incompetency,  etc ,  upon  the  cause  therefor  be- 
ing set  forth  in  writing,  does  noi  prevent  more  than  one  ground 
for  such  removal  being  included  in  a  petition  filed  therefor. 

Under  Rev.  St.  Tex.,  Tit.  66,  Chap.  2,  providing  that  the  trial- 
and  all  proceedings  on  a  petition  for  the  removal  of  a  county 
officer  for  misconduct,  etc.,  shall  be  conducted,  so  far  as  possible, 
in  accordance  with  the  practice  in  other  civil  cases,  the  petition 


Tax  Collector.  649 

may  be  amended  under  rules  applying  in  other  cases;  and,  where 
the  cause  of  removal  alleged  is  the  failure  of  the  officer  to  pay 
over  money,  the  petition  may  be  amended  so  as  to  charge  such 
delinquency  to  have  been  willful.  Poe  v.  State,  10  S.  W.  7Z7,  72 
Tex.  625. 

§  1020.     Cities — Action  on  bond — Proof  necessary. 

In  an  action  on  the  bond  of  a  city  tax  collector,  for  taxes  col- 
lected and  not  paid  over,  the  collector  may  testify  that  he  only 
charged  the  usual  fees. 

The  city  has  the  burden  to  show  that  the  fees  charged  were 
excessive. 

The  council  may  lawfully  authorize  the  tax  collector  to  receive 
one-fourth  of  the  taxes  in  city  scrip,  and  can  not  afterwards  re- 
pudiate his  exercise  of  such  authority. 

The  report  of  a  council  committee,  that  they  have  been  in- 
formed that  the  collector's  sale  of  land  for  taxes  had  not  been 
made  according  to  law,  is  no  evidence  that  such  collector  did  not 
do  his  duty.    City  of  Ysleta  v.  Lomenstein,  25  S.  W.  444. 

§  1021.     Successor  of  sheriff. 

The  assessor  and  collector,  not  the  sheriff,  under  the  state  or- 
ganization, became  the  "successor"  of  the  sheriff,  as  tax  collector 
under  the  republic.    Bryan  v.  Harvey,  11  Tex.  312. 

§  1022.     No  release  of  sureties  when. 

The  Act  of  April  22,  1871  (Pasch.  Dig.,  p.  1605),  did  not  op- 
erate as  a  release  of  the  securities  of  the  bond  of  a  collector 
of  taxes  for  the  amount  of  school  tax  collected  after  that  date, 
under  a  bond  executed  under  the  Act  of  1871 ;  nor  did  the  action 
of  the  county  court,  in  directing  suit  for  a  specific  sum  against 
the  officer  and  his  sureties,  preclude  the  county  from  recovering 
the  true  amount  due.    Houston  County  v.  Dwyer,  59  Tex.  113. 

§  1023.     Practice  in  suit  against  what  must  be  shown. 

In  a  suit  against  a  tax  collector  and  the  securities  on  his  offi- 
cial bond,  for  failing  to  pay  over  money  collected  as  such,  it 
should  be  shown  that  the  tax  collector  received  the  tax  rolls  from 
the  proper  authorities,  and  that  they  were  in  his  hands  for  col- 
lection. When  he  thus  receives  them,  he  is  justly  chargeable 
with  the  whole  amount  of  the  rolls.  The  burden  is  then,  and 
not  before,  on  the  collector  to  show  that  he  has  collected  and 


650  Taxation  in  Texas. 

paid  over,  or  to  show  lawful  excuse  for  his  failure  to  do  so. 
Cordray  v.  The  State,  55  Tex.  141 ;  Szmn  v.  The  State,  48  Tex. 
121;  Shaw  v.  The  State,  43  Tex.  359;  Allbright  v.  The  Governor, 
25  Tex.  695,  and  other  cases,  cited  and  followed.  Houston 
County  V.  Dmyer,  59  Tex.  113. 

§  1024.     Sureties  not  released  until  new  bond  approved. 

The  sureties  of  a  tax  collector  who  procure,  on  their  applica- 
tion to  be  released,  an  order  of  the  commissioners'  court  requir- 
ing of  the  collector  a  new  bond,  are  not  relieved  as  sureties  until 
a  new  bond  is  approved  by  the  comptroller  of  the  state,  notwith- 
standing its  approval  by  the  commissioners'  court.  State  v. 
Wells,  61  Tex.  562. 

§  1025.     Suit  on  bond — Letter  from  comptroller  admissible. 

In  a  suit  by  the  state  on  the  official  bond  of  the  assessor  and 
collector  to  render  liable  him  and  his  sureties,  for  a  default  in 
collecting  taxes  of  a  certain  class,  letters  of  instruction  from 
the  comptroller  to  him  giving  instructions  to  desist  from  the  sale 
of  property  for  the  purpose  of  collecting  said  taxes  until  he 
should  receive  further  instructions  from  the  comptroller's  office, 
such  evidence  is  admissible  and  relevant,  under  an  issue  setting 
up  said  instructions  as  a  defense.  Allbright  v.  The  Goz'ernor, 
25  Tex.  687. 

§  1026.  No  liability  as  to  county  or  sureties  on  bond  on  taxes 
collected  without  authority. 
When  a  county  treasurer  collects  taxes  without  authority  of 
law,  he  alone  is  responsible  therefor;  and  an  action  can  not  be 
maintained  either  against  his  sureties  or  the  county  for  the  money 
so  collected,  even  though  the  money  be  paid  into  the  county  treas- 
ury and  disbursed  as  other  funds  of  the  county.  Wood  v.  V .  S. 
Stirman,  37  Tex.  584. 

§  1027.     Suit  on  delinquent  sheriff  bond. 

A  suit  by  the  state  against  a  delinquent  sheriflf  for  failing  to 
pay  over  taxes  collected  by  him  is  a  suit  upon  the  bond,  and  the 
breach  of  the  bond  is  the  failure  to  pay  over  such  taxes ;  suit  not 
being  upon  the  stated  account  from  the  comptroller's  office,  it  is 
not  necessary  that  such  account  be  made  part  of  the  petition. 
Shaiv  V.  The  State,  43  Tex.  355. 


Tax  Collector.  651 

§  1028.     Cannot  question  validity  of  act  to  avoid  payment  of 
moneys  collected. 
5'zeYm  V.  State,  48  Tex.  120. 

Not  entitled  to  fees  from  state  when  land  is  bid  in  by  state 
unless  redeemed  by  owner. 

A  tax  collector,  who,  under  the  law,  has  bid  in  land  sold  for 
taxes  to  the  state,  is  not  entitled  under  the  Act  of  1876  (p. 
259,  Sec.  30),  to  retain  to  his  settlement  with  the  comptroller  the 
same  commissions,  penalties  and  costs  to  which  he  would  have 
been  entitled  had  the  land  been  bid  off  by  an  individual. 

When  lands  bid  in  at  a  tax  sale,  for  the  state,  shall  have  been 
redeemed  by  the  owner,  the  previously  unpaid  fees  and  costs,  and 
which  are  included  in  the  price  of  the  redemption,  would  be  held 
by  the  state  for  the  benefit  of  the  collector.  Dean  v.  The  State 
of  Texas,  54  Tex.  313. 

§  1029.     Liability  of  surety  not  limited  when. 

The  liability  of  sureties  on  the  official  bond  of  a  tax  collector, 
which  by  its  terms  binds  the  principal  and  sureties  jointly  and 
severally  for  its  payment,  subject  to  the  condition  that  the  prin- 
cipal will  faithfully  perform  all  the  duties  required  of  him  by 
law  as  such  collector,  is  not  limited  by  writing  opposite  the  sig- 
nature of  each  surety  a  specific  amount,  and  causing  the  certifi- 
cate of  their  acknowledgment  to  recite  that  they  had  each  ren- 
dered himself  liable  for  such  specific  amount.  Cordray  v.  The 
State  of  Texas,  55  Tex.  140. 

§  1030.     Interest  on  amount  in  default. 

In  a  suit  against  a  defaulting  tax  collector,  in  the  absence  of 
evidence  showing  when  his  collections  were  made,  or  that  he  was 
in  default  before  the  end  of  the  fiscal  year,  interest,  under  the 
provisions  of  the  Act  of  August  21,  1876  (Acts  15th  Leg., 
259),  should  be  required  of  him  on  the  amount  for  which  he  was 
in  default,  only,  from  the  end  of  the  fiscal  year  for  which  the 
collections  were  made.  Cordray  v.  The  State  of  Texas,  55  Tex. 
141. 

§  1031.     Suit  against  to  recover  tax  on  illegal  valuation. 

In  an  action  against  a  tax  collector  to  recover  taxes  paid  on 
an  alleged  illegal  valuation,  it  was  not  error  for  the  court  to 
sustain  a  demurrer  to  the  complaint,  where  the  proceedings  were 


652  Taxation  in  Texas. 

regular  on  their  face,  and  the  tax  rolls  were  in  due  form,  and 
had  issued  from  the  proper  authority,  as  such  proceedings  jus- 
tify the  collector  in  his  acts. 

Under  Rev.  St.,  Arts.  5157,  5159,  requiring  a  tax  collector 
to  give  bond  to  the  state  officers  for  the  collection  of  state  taxes, 
and  Articles  5210,  5211,  prescribing  independent  reports  of  the 
two  remittances  and  collections,  an  action  could  not  be  main- 
tained against  a  county  for  the  recovery  of  state  taxes  paid  on 
an  alleged  illegal  valuation  of  the  property,  as  the  county  was 
charged  with  no  duty  relating  thereto. 

Where  the  petition,  in  an  action  against  a  county  to  recover 
taxes  paid  on  an  alleged  illegal  assessment  of  property,  did  not 
separate  the  amounts  paid  for  state  and  county  taxes,  the  court 
could  take  judicial  notice  of  the  rate  of  taxation  fixed  by  gen- 
eral law  for  state  purposes,  and  thereby  determine  the  amount 
of  county  taxes  due,  in  controversy,  for  the  purpose  of  determin- 
ing the  jurisdiction  of  the  county  court.  Texas  Land  &  Cattle 
Co.  V.  Hemphill  County,  61  S.  W.  333. 

§  1032.     Collection  on  municipal  bonds. 

A  city  can  not  maintain  an  action  against  its  tax  collector,  nor 
sureties  on  his  bond  to  the  city,  to  recover  taxes  collected  by 
him  upon  assessment  to  meet  the  interest  and  sinking  fund  of 
municipal  bonds.  In  making  such  collections  he  performs  a  duty 
to  the  state,  makes  payment  to  the  state  treasurer,  and  is  re- 
quired to  give  bond  to  the  state,  and  has  no  right  to  pay  to  the 
city.    House  v.  City  of  Dallas,  96  Tex.  594. 

§  1033.     Entitled  to  one  dollar  for  each  correct  assessment. 

Under  Acts  1897,  Sees.  3,  9  (Sayles  Civ.  St.,  Arts.  5232c, 
52321),  requiring  the  collector  to  prepare  a  delinquent  tax  record, 
showing  the  amount  of  taxes  assessed  against  each  owner  and 
returned  delinquent  for  each  year,  and  securing  him  a  fee  of 
$1  for  each  correct  assessment,  and  securing  to  the  county  clerk 
for  making  out  and  recording  each  delinquent  assessment  and 
certifying  the  same,  and  noting  the  same  on  the  delinquent  tax 
record,  a  fee  of  $1,  to  be  taxed  as  costs  against  the  land  in  each 
suit,  these  officers  are  entitled  to  a  fee  of  $1  each  for  each  year 
taxes  were  delinquent.    State  v.  Wolfe,  51  S.  W.  657. 


Tax  Collector.  653 

§  1034.     Rights  of  surety. 

The  county  tax  collector  having  received  taxes  without  au- 
thority and  then  defaulted,  the  attorney  general  was  about  to  in- 
stitute suit  against  his  bondsmen  to  recover  the  money,  when  they 
induced  such  officer  to  proceed  against  a  taxpayer,  offering  to 
conduct  the  suit  on  behalf  of  the /state  to  a  successful  termina- 
tion, and  to  place  in  the  hands  of  the  attorney  general  an  account 
equal  to  that  due  from  the  collector  as  taxes,  to  be  held  and 
turned  into  the  state  treasury  in  discharge  of  the  bondsmen's 
liabiHty  in  case  the  state's  suit  was  unsuccessful.  This  agree- 
ment was  carried  out.  Held,  that  such  payment  to  secure  the 
state  was  not  a  satisfaction  of  the  demand  of  the  state  against 
the  taxpayer,  so  as  to  deprive  the  state  of  any  interest  in  an  ac- 
tion to  enforce  the  same. 

Where,  after  a  tax  collector's  default,  his  bondsmen  induced 
the  attorney  general  to  sue  a  taxpayer  to  recover  taxes  misap- 
propriated by  the  collector,  the  bondsmen  depositing  an  amount 
equal  to  the  taxes  so  appropriated  with  the  attorney  general,  to 
await  the  result  of  such  suit  and  then  either  to  be  paid  to  the 
state  or  returned,  on  the  state  recovering  judgment  against  the 
taxpayer,  the  bondsmen  were  not  entitled  to  claim  the  same  as 
recovered  for  their  use.  Texas  &  N.  O.  Ry.  Co.  v.  State,  97  S. 
W.  142,  43  Tex.  Civ.  App.  580. 

§  1035.     Limitation  as  to  collecting. 

Where  fees  on  delinquent  taxes  were  collected  by  a  deceased 
tax  collector's  successor  in  office,  he  held  such  fees  in  trust  for 
the  deceased  collector's  heirs,  and  hence  limitations  would  not 
run  against  their  right  to  recover  the  same,  until  they  had  notice 
that  the  collector  repudiated  relationship  and  claimed  the  fees 
adversely  to  them.    Bond  v.  Poindexter,  116  S.  W.  395. 

§  1036.     Not  liable  to  county  under  bond  to  state. 

A  bond  was  given  by  a  sheriff  to  "John  Ireland,  Governor 
of  Texas,"  conditioned  for  the  performance  of  the  former's  duty 
as  tax  collector  of  his  county.  The  bond  was  in  form  such  as  is 
required  to  secure  the  state  for  the  faithful  collection  of  state 
taxes,  another  kind  of  bond  in  favor  of  the  county  judge  being 
required  to  secure  the  county  for  the  safe  collection  of  its  taxes. 
In  an  action  upon  this  bond  for  the  benefit  of  the  county,  no 


654  Taxation  in  Texas. 

competent  evidence  being  introduced  to  show  that  it  was  in- 
tended to  secure  the  county  for  the  faithful  performance  of  the 
sheriff  as  to  the  collection  of  county  taxes,  held,  that  a  recovery 
could  not  be  sustained.  King  v.  Ireland,  5  S.  W.  499,  68  Tex. 
682. 

§  1037.     Cannot  deny  officer's  election. 

A  bond  given  by  an  officer,  having  recited  his  official  charac- 
ter, in  an  action  thereon  against  him  and  his  sureties,  it  is  un- 
necessary to  prove  his  election  to  his  office,  as  the  sureties  are 
estopped  from  denying  it.  King  v.  Ireland,  5  S.  W.  499,  68  Tex. 
682. 

§  1038.     A  trespasser  when. 

A  tax  collector  is  liable  in  actual  damages  as  a  trespasser  for 
the  execution  of  void  process  in  a  foreign  county.  Wright  v. 
Jones,  38  S.  W.  249,  14  Tex.  Civ.  App.  423. 

§  1039.     Right  to  emoluments. 

Where  plaintiff  was  legally  elected  tax  collector  of  a  county, 
he  became  entitled  to  the  office  and  the  emoluments  thereof  as 
soon  as  he  took  the  oath  of  office  and  qualified.  Graves  v.  Bul- 
/^«,  115  S.  W.  1177. 

§  1040.     No  authority  to  tax  collector. 

Under  the  rule  that  public  officers  can  not  bind  the  state  or 
county  beyond  their  actual  authority,  a  tax  collector  has  no  legal 
authority  to  agree  with  a  taxpayer  to  substitute  his  responsibility 
of  that  of  the  taxpayer. 

Defendant,  before  retiring  from  the  office  of  tax  collector,  exe- 
cuted, as  paid,  the  tax  receipts  of  a  large  number  of  taxpayers 
in  the  county,  listed  on  his  official  tax  rolls.  The  taxes  had  not 
been  paid  or  tendered,  defendant's  purpose  being  to  advance  the 
money  and  pay  the  taxes,  holding  the  receipts  as  a  personal 
claim  for  the  money  so  advanced  against  the  taxpayers,  and  thus 
benefit  by  the  commissions  after  his  term.  When  plaintiff  quali- 
fied as  tax  collector,  these  receipts  had  not  been  removed  from 
the  office  nor  delivered  by  defendant  to  the  taxpayers,  nor  the 
taxes  paid  either  by  them  or  by  defendant,  who,  after  retiring 
from  the  office,  paid  the  taxes  in  full.  Held,  that  such  transac- 
tion was  without  authority,  and  that  plaintiff  was  entitled  to  re- 
cover commissions  on  the  taxes  so  paid.  Graves  v.  Bullen,  115 
S.  W.  1117. 


Tax  Collector.  '  655 

§  1041.     Tax  collector  alone  can  collect. 

The  duty  of  the  tax  collector  to  collect  all  taxes  due  the  county 
and  the  state  is  one  of  the  governmental  ministerial  functions 
which  he  alone  can  exercise,  and  a  contract  whereby  the  commis- 
sioners' court  attempts  to  employ  another  to  do  the  work  is  void. 
Stringer  v.  Franklin  County,  123  S.  W.  1168. 


CHAPTER  LVI. 

SHERIFF. 

Sec.  Sec. 

1042.  Sheriff  tax  collector.  1044.  Fees  on  notices. 

1043.  Sheriff    entitled    to    fee    for  1045.  Commission   on   sales, 
selling    and    making    deed,  1046.  Right  of  sheriff  to  withhold 
etc.  his  costs  from  proceeds  of 

tax  sales. 

§  1042.     Sheriff  tax  collector. 

The  sheriff  of  each  county,  in  addition  to  his  other  duties, 
shall  be  the  collector  of  taxes  therefor.  But  in  counties  having 
ten  thousand  inhabitants,  to  be  determind  by  the  last  preced- 
ing census  of  the  United  States,  a  collector  of  taxes  shall  be 
elected,  to  hold  office  for  two  years  and  until  his  successor  shall 
be  elected  and  qualified.    St.  Const,  Art.  8,  Sec.  16. 

In  determining  whether  sheriff  was  under  this  section,  also 
ex  officio  collector  of  taxes,  the  list  of  the  enumerator  taking  the 
last  census  for  the  county,  if  duly  certified  and  filed  in  the  office 
of  the  county  clerk,  prior  to  his  election,  will  govern  whether  or 
not  the  county  has  ten  thousand  inhabitants.  Nelson  v.  Edivards, 
55  Tex.  389. 

§1043.  Sheriff  entitled  to  fee  for  selling  and  making  deed,  etc. 
Under  the  Act  of  1897,  p.  136,  Sec.  9,  the  sheriff  shall  be  en- 
titled to  a  fee  of  one  dollar  for  selling  and  making  deed  thereto 
to  each  purchaser  of  land  that  he  sells  under  judgment  for  taxes, 
which  fee  shall  be  taxed  as  costs  of  suit,  provided  that  if  the  de- 
linquent may  pay  the  amount  of  the  tax,  interest,  penalties,  and 
all  accrued  costs  to  the  county  collector  during  the  pendency  of 
such  suit  and  the  sheriff  shall  receive  as  compensation  therefor 
only  one  dollar  in  each  case;  but  the  fee  shall  be  in  lieu  of  fees 
provided  for  such  officers  where  suits  are  brought. 

§  1044.     Fees  on  notices. 

A  sheriff  is  not  entitled  to  compensation  for  services  of  notices 
'of  the  sale  of  property  for  delinquent  city  taxes  on  parties  and 
their  attorneys.    City  of  San  Antonio  v.  Campbell,  56  S.  W.  130. 


Sheriff.  657 

§  1045.     Commission  on  sales. 

Where  the  judgment  foreclosing  a  city  tax  lien  on  several  par- 
cels of  land  required  an  apportionment  against  each  parcel,  the 
sheriff  was  entitled  to  commissions  on  money  collected  on  the 
sale  of  one  of  the  parcels  though  he  had  received  commissions  on 
money  collected  under  the  same  order  without  sale  of  the  other 
parcels.    City  of  San  Antonio  v.  Campbell,  56  S.  W.  131. 

§  1046.  Right  of  sheriff  to  withhold  his  costs  from  proceeds 
of  tax  sales. 
It  is  urged  by  appellee  that  the  matter  of  costs  can  not  be  con- 
sidered in  this  proceeding,  but  that  motion  to  retax  the  costs 
should  have  been  resorted  to.  The  action  was  for  the  entire  pro- 
ceeds of  the  sale,  plaintiff  denying  the  right  of  the  sheriff  to 
withhold  any  of  it.  The  right  of  the  sheriff  to  withhold  from 
plaintiff  all  or  any  of  the  costs  was  not  a  question  that  could 
have  been  decided  upon  a  mere  motion  to  retax.  Plaintiff  wa§ 
obliged,  by  the  position  of  the  sheriff  in  withholding  any  of  the 
collection  which  plaintiff  claimed  should  be  paid  to  it,  to  pro- 
ceed by  petition,  or  motion  to  assert  its  right  thereto.  The  law 
does  not  require  or  favor  a  multiplicity  of  actions,  and  the  de- 
termination of  what  were  proper  sheriff's  charges  for  costs  not 
included  in  bill  of  costs  issued  with  the  writ  was  incidental  to 
this  action.    City  of  San  Antonio  v.  Campbell,  56  S.  W.  131. 


42 


CHAPTER  LVII. 

DISTRICT  AND  COUNTY  CLERK. 

Sec.  Sec. 

1047.  Fees    under    delinquent   tax  1051.  Fees    under    delinquent    tax 
act  of  the  district  clerk.  act. 

1048.  Delinquent    lists    to    be    re-  1052.  Not  entitled  to  fee  when  list 
corded  by  county  clerk.  is  not  recorded. 

1049.  Delinquent  Tax  Record.  1053.  Entitled    to    fee    under    Act 

1050.  County    clerk    shall    furnish  1897. 
copies,  etc. 

§  1047.     Fees  under  delinquent  tax  act  of  the  district  clerk. 

Under  the  Act  of  1897,  p.  136,  Sec.  9,  the  district  clerk  shall 
be  entitled  to  a  fee  of  one  dollar  and  fifty  cents  in  each  case  to  be 
taxed  as  costs  of  suit,  provided  the  delinquent  taxpayer  may  pay 
the  amount  of  the  tax,  interest,  penalties  and  all  accrued  costs, 
during  the  pendency  of  suit,  the  district  clerk  shall  receive  only 
one  dollar  in  each  case,  but  this  fee  shall  be  in  lieu  of  the  fees 
provided  for  such  officer  where  suit  was  brought. 

§  1048.     Delinquent  lists  to  be  recorded  by  county  clerk. 

After  the  delinquent  tax  record  provided  for  by  the  acts  of 
1895  and  1897  has  been  prepared  it  shall  be  the  duty  of  the 
county  clerk  of  each  of  the  counties  of  the  state,  respectively,  to 
certify  the  same  to  the  commissioners'  court  for  examination  and 
correction,  and  shall  thereafter  cause  the  same  to  be  recorded  in 
a  book,  which  book  shall  be  labeled  the  "Delinquent  Tax  Record 
of County."  The  delinquent  tax  record  shall  be  ar- 
ranged numerically  as  to  abstract  numbers  and  shall  be  accom- 
panied by  an  index  showing  the  names  of  delinquents  in  alpha- 
betical order.    Acts  1897,  p.  132,  Sec.  4;  Sayles  R.  S.,  Art.  S232d. 

The  delinquent  tax  record  above  provided  for  shall  be  deliv- 
ered to  and  preserved  by  the  county  clerk  in  his  office,  and  the 
commissioners'  court  shall  cause  a  duplicate  of  the  same  to  be  sent 
to  the  comptroller.  Acts  1897,  p.  133,  Sec.  3 ;  Sayles'  R.  S.,  Art. 
5232c. 


District  and  County  Clerk.  659 

§  1049.     Delinquent  tax  record. 

On  receipt  of  such  delinquent  tax  record  containing  a  complete 
list  of  the  lands  or  lots  that  have  been  reported  delinquent  or 
sold  to  the  state  for  taxes  for  any  year  or  nuqiber  of  years 
since  January  1,  1885,  and  containing,  also,  the  data  and  infor- 
mation mentioned  in  Article  5232c,  it  shall  be  the  duty  of  the 
county  clerk  of  each  of  the  counties  of  this  state,  respectively,  to 
certify  the  same  to  the  commissioners'  court  for  examination  and 
correction,  and  shall  thereafter  cause  the  same  to  be  recorded 
in  a  book,  which  book  shall  be  labeled  "The  Delinquent  Tax  Rec- 
ord of County,"   The  delinquent  tax  record  shall  be 

arranged  numerically  as  to  abstract  numbers,  and  shall  be  ac- 
companied by  an  index  showing  the  names  of  delinquents  in 
alphabetical  order.  Acts  1897,  p.  133,  Sec.  4;  Sayles'  R.  S., 
Art.  5232d. 

§  1050.     County  clerk  shall  furnish  copies,  etc. 

County  clerk  shall  furnish  all  affidavits,  certified  copies  of  rec- 
ords in  his  office  and  such  other  evidence  as  may  be  in  his  pos- 
session by  virtue  of  his  office  as  may  be  applied  for  by  the  county 
attorney.     Acts  1897,  p.  134,  Sec.  6. 

§  1051.     Fees  under  delinquent  tax  act. 

Under  the  Act  of  1897,  p.  136,  Sec.  9,  the  county  clerk,  for 
making  out  and  recording  the  data  of  each  delinquent  assessment, 
and  for  certifying  the  same  to  the  commissioners'  court  for 
correction  and  for  noting  the  same  in  the  minutes  of  the  com- 
missioners' court,  and  for  certifying  the  same  with  corrections 
to  the  comptroller,  and  noting  the  same  on  his  delinquent  tax 
record,  shall  receive  the  sum  of  one  dollar,  to  be  taxed  as  costs 
against  the  land  in  each  suit ;  provided,  that  in  no  case  shall  the 
state  or  county  be  liable  for  such  fees,  buti  in  each  case  they 
shall  be  taxed  as  costs  against  the  land  to  be  sold  under  judg- 
ment for  taxes  and  paid  out  of  the  proceeds  of  sale  of  same 
after  the  taxes,  penalty  and  interest  due  thereon  to  the  state 
are  paid. 

§  1052.     Not  entitled  to  fee  when  list  is  not  recorded. 

In  the  case  of  State  of  Texas  v.  Henry  J.  Scott,  appeal  from 
Clay  County,  the  district  judge  before  whom  the  case  was  tried 
held  that  the  county  clerk  was  not  entitled  to  any  fee  because 


660  Taxation  in  Texas. 

he  did  not  record  the  list,  and  in  an  oral  opinion  oy  Justice  Hun- 
ter the  judgment  of  the  lower  court  was  in  all  things  affirmed 
on  November  11,  1899,  and  a  writ  of  error  refused  by  Supreme 
Court  on  the  18th  of  January,  1900. 

§  1053.     Entitled  to  fee  under  act  1897. 

"Under  Acts  1897,  Sees.  3,  9  (Sayles'  Civ.  St.,  Arts.  5232c, 
5232i),  requiring  the  collector  to  prepare  a  delinquent  tax  record, 
showing  the  amount  of  taxes  assessed  against  each  owner  and 
returned  delinquent  for  each  year,  and  securing  him  a  fee  of  $1 
for  each  correct  assessment,  and  securing  to  the  county  clerk 
for  making  out  and  recording  each  delinquent  assessment  and 
certifying  the  same,  and  noting  the  same  on  the  delinquent  tax 
record,  a  fee  of  $1,  to  be  taxed  as  costs  against  the  land  in  each 
suit,  these  officers  are  entitled  to  a  fee  of  $1  each  of  the  years 
taxes  were  delinquent."    State  v.  Wolfe,  51  S.  W.  657. 


CHAPTER  LVIII. 

ATTORNEY. 

Sec.  Sec, 

1054.  District    and    county    attor-      1060.  Effect  of  want  of  authority 
neys     and     attorneys     em-  on  judgment. 

ployed.  1061,  Right    of     city     to     employ 

1055.  Attorney    to   represent    the  council. 

State — Fees.  1062.  Attorney's    fees — When    not 

1056.  Lots  separately  assessed  and  authorized. 

owned  by  one  person — One      1063.  Liable     for    reasonable 
tract  as  to  costs.  amount  for  services. 

1057.  Attorney   general — Right   to      1064.  Failure  to  appoint  attorney. 

represent      State     in  tax      1065.  County    attorney   may    pur- 
suits, chase  land  sold  at  tax  sale. 

1058.  Attorney's  fees.  1066.  County  attorney  must  assist 

1059.  Salary  incident  to  ofHce.  In  collecting  taxes  on  con- 

tract. 

§  1054.     District  and  county  attorneys  and  attorneys  employed 
to  collect  taxes. 

Duty  of  district  and  county  attorneys  to  sue  for  taxes  on  per- 
sonal property. 

Hereafter  it  shall  be  the  duty  of  the  district  or  county  attor- 
ney of  the  respective  counties  of  this  state,  by  order  of  the  com- 
missioner's court,  to  institute  suit  in  the  name  of  the  state  for 
the  recovery  of  all  money  due  the  state  and  county  as  taxes  due 
and  unpaid  on  unrendered  personal  property,  and  in  all  suits 
where  judgments  are  obtained  under  this  act  the  person  owning 
the  property  on  which  there  are  taxes  due  the  state  and  county 
shall  be  liable  for  all  costs ;  provided,  such  suits  may  be  brought 
for  all  taxes  so  due  and  unpaid  for  which  such  delinquent  tax- 
payer may  be  in  arrears  for  and  since  the  year  1886;  and,  pro- 
vided further,  the  state  and  county  shall  be  exempt  from  liability 
from  any  costs  growing  out  of  such  action;  provided,  all  suits 
brought  under  this  article  for  the  recovery  of  taxes  due  on  per- 
sonal property  shall  be  brought  against  the  person  or  persons 
who  owned  the  property  at  the  time  such  property  should  have 
been   listed   or   assessed    for   taxation;   provided,    that  no   suit 


662  Taxation  in  Texas. 

shall  be  brought  until  after  demand  is  made  by  the  collector  for 
taxes  due;  and  provided,  further,  that  no  suit  shall  be  brought 
for  an  amount  less  than  twenty-five  dollars.  (Report  Joint  Com- 
mittee, Sen.  Jour.  1895,  p.  486,  No.  113.) 

§  1055.     Attorney  to  represent  the  state — Fees. 

In  no  case  shall  the  compensation  of  said  county  attorney  be 
greater  than  three  dollars  ^for  the  first  tract  in  one  suit,  and  one 
dollar  for  each  additional  tract,  if  more  than  one  tract  is  em- 
braced in  some  suit  to  recover  taxes,  interest,  penalty  and  costs ; 
provided,  that  those  county  attorneys  who  institute  tax  suits  shall 
be  entitled  to  an  equal  division  with  their  successor  in  office  of 
the  fees  allowed  herein  on  all  suits  instituted  by  them,  where 
the  judgment  has  not  been  obtained  prior  to  the  vacation  of  their 
office,  provided,  that  where  two  or  more  unimproved  city  or  town 
lots  belonging  to  the  same  person,  and  situated  in  same  city 
or  town  shall  be  included  in  the  same  suit,  and  costs  taxed  against 
them  collectively  just  as  if  they  were  one  tract  or  lot;  and,  pro- 
vided further,  that  where  suits  have  been  brought  by  the  state 
against  delinquents  to  recover  tax  due  by  them  to  the  state  and 
county,  the  said  delinquent  may  pay  the  amount  of  the  tax,  inter- 
est, penalties  and  all  accrued  costs  to  the  county  collector  dur- 
ing the  pendency  of  such  suit,  and  the  county  attorney  shall  re- 
ceive as  compensation  therefor  two  dollars  for  the  first  tract  and 
one  dollar  for  each  additional  tract  embraced  in  said  suit.    Acts 
1897,  p.  132,  Sec.  9;  Sayles'  R.  S.,  Art.  5332i. 

§    056.     Lots  separately  assessed  and  owned  by  one  person — 
One  tract  as  to  costs. 

Under  Acts  1897,  p.  136,  Ch.  103,  Sec,  9,  providing  that,  where 
two  or  more  unimproved  town  lots  belonging  to  the  same  per- 
son are  included  in  the  same  suit  for  taxes,  the  costs  shall  be 
taxed  against  the  lots  collectively  as  if  they  were  one  tract,  the 
costs  in  a  suit  for  taxes  against  unimproved  town  lots,  owned 
by  one  person,  but  separately  assessed  in  the  name  of  an  unknown 
owner,  must  be  taxed  on  the  basis  of  the  lots  being  one  tract. 
Raht  i'.  State,  106  S.  W.  900. 

§  1057.     Attorney-General — Right   to   represent   state   in   tax 
suits. 
Constitution,  Art.  5,  Sec.  21,  providing  that  the  county  attor- 
ney shall  represent  the  state  in  all  cases  in  the  district  and  in- 


Attorney.  663 

ferior  courts  in  their  respective  counties,  and  if  any  county  shall 
be  included  in  a  district  in  which  there  shall  be  a  district  attorney, 
the  duties  of  the  district  and  county  attorneys  shall  be  regulated 
by  the  Legislature,  when  construed  in  connection  with  Art.  4, 
Sec.  22,  providing  that  "the  attorney-general  shall  represent  the 
state  in  all  suits  in  the  Supreme  Court,  and  shall  inquire  into  the 
charter  rights  of  private  corporations,  etc.,  and  shall  perform 
such  other  duties  as  may  be  required  by  law,"  does  not  render 
invalid  the  provisions  of  Laws  1905,  p.  338,  Ch.  141,  Sec.  5,  mak- 
ing it  the  duty  of  the  attorney-general  on  the  request  of  the 
comptroller  to  sue  in  the  name  of  the  state  for  the  taxes  imposed 
on  railroad  corporations.  Nor  the  provisions  of  Law  1905,  p. 
358,  Ch,  148,  requiring  the  attorney-g-eneral  to  sue  in  the  name 
of  the  state  for  the  taxes  imposed  on  express  companies,  etc.,  and 
the  county  and  district  attorneys  cannot  prosecute  such  cases. 
Brady  v.  Brooks,  89  S.  W.  1052 ;  99  Tex.  366. 

§  1058.     Attorney's  fees. 

A  city  charter  provided  that,  in  actions  by  the  city  for  the 
collection  of  taxes  due  it,  the  city  attorney  shall  be  entitled  to  a 
fee  of  5  per  cent  of  the  amount  of  the  tax  which  should  be  taxed 
as  costs  against  the  property.  Held,  that  the  statute  could  not 
be  given  a  retroactive  effect,  so  as  to  charge  the  property  of  de- 
linquent taxpayers  with  an  additional  5  per  cent  on  the  amount 
of  taxes  due  prior  to  the  passage  of  the  statute. 

A  city  charter  passed  in  1897  provided  that,  in  suits  by  the 
city  for  collection  of  taxes,  the  city  attorney  should  be  entitled 
to  a  fee  of  5  per  cent  of  the  amount  of  the  tax,  which  should  be 
taxed  as  costs  against  the  property,  and  thereafter  the  city  council 
resolved  that  the  city  attorney  should  be  allowed  a  commission 
of  10  per  cent  on  all  sums  collected  by  action  to  enforce  taxes 
prior  to  1897.  Held,  that  the  city  had  authority  to  make  such 
compensation. 

Under  a  resolution  of  a  city  council,  providing  that  the  city 
attorney  should  be  allowed  a  commission  on  all  sums  collected  by 
him  for  the  city  by  action  to  enforce  collection  of  taxes,  the  at- 
torney was  entitled  to  commissions  on  taxes  paid  the  city  after 
he  went  out  of  office  on  judgments  obtained  by  him. 

If  the  city,  without  the  attorney's  consent,  arbitrarily  released 
a  portion  of  such  judgments,  or  purchased  any  of  the  property 


664  Taxation  in  Texas. 

in  satisfaction  of  the  judgment  against  it,  it  would  be  liable  to 
the  attorney  for  the  full  amount  of  his  commission. 

The  attorney  was  entitled  to  a  pro  rata  share  in  commissions 
due  on  judgments  collected  by  the  city  in  suits  brought  by  him, 
but  not  decided  when  he  went  out  of  office.  City  of  Houston  v. 
Stewart,  90  S.  W.  52,  40  T.  C.  A.  499;  James  v.  Turner,  78  Tex. 
243,  14  S.  W.  574;  Raley  v.  Smith,  73  S.  W.  SA;  Bright  v.  Heives, 
18  La.  Ann.  666;  Atchison  v.  City  of  Owenshoro,  (Ky.)  71  S. 
W.  864,  44  Tex.  Crim.  App.  441 ;  City  of  El  Paso  v.  Ashford,  3 
Tex.  378,  22  S.  W.  177. 

A  city  is  liable  for  the  reasonable  value  of  the  services  of  an 
attorney  in  the  collection  of  its  delinquent  taxes,  though  the  con- 
tract between  the  city  and  attorney  for  such  services  was  in- 
valid. Brand  v.  City  of  Sam,  Antonio,  37  S.  W.  340;  San  Antonio 
V.  French,  80  Tex.  575  ;  Penn  v.  City  of  Laredo,  26  S.  W.  636. 

Where*  an  attorney  fee  is  for  a  percentage  of  the  amount  col- 
lected it  is  not  necessary  that  he  actually  collect  the  money  to 
entitle  him  to  his  percentage,  where  he  has  prosecuted  the  suit 
to  final  judgment.  James  v.  Turner,  78  Tex.  243 ;  Ry.  Co.  v. 
Scott,  28  S.  W.  458. 

Where  a  city  attorney  recovered  a  money  judgment  for  the 
city,  the  fact  that  the  collection  was  delayed  until  after  his  term 
of  office  by  appeal  did  not  deprive  him  of  his  right  to  ten  per 
cent  of  the  amount  so  recovered.  Atchison  v.  City  of  Ozuens- 
boro,  71  S.  W.  864,  44  Tex.  Crim.  App.  441. 

An  attorney's  lien  on  a  judgment  exists  notwithstanding  the 
judgment  is  compromised.  Covington  v.  Bass,  (Tenn.)  12  S.  W. 
1033. 

Where  the  city  attorney  of  New  Orleans  had  obtained  judg- 
ment against  delinquent  taxpayers,  for  taxes,  and,  before  the 
judgments  were  satisfied,  was  removed  from  the  office,  it  was 
held  that  he  was  entitled  to  receive  from  the  sheriff  the  per- 
centage provided  by  law  as  the  attorney's  compensation  in  such 
cases,  upon  all  sums  actually  collected  on  such  judgments. 
Bright  V.  Hemes,  18  La.  Ann.  666. 

Where  the  city  received  the  benefit  of  the  services  of  attor- 
neys, it  is  estopped  from  denying  liability  for  the  same,  though 
the  attorneys  were  employed  without  authority.  City  of  Deni- 
son  V.  Foster,  28  S.  W.  1052. 


Attorney.  665 

§  1059.     Salary  incident  to  office. 

The  salary  or  emolument  annexed  to  a  public  office  is  inci- 
dent to  the  office,  and  not  to  its  occupation  and  exercise.  Beard 
V.  City  of  Decatur,  64  Tex.  11. 

§  1060.     Effect  of  want  of  authority  on  judgment. 

"Where  the  owner  of  land  authorized  her  attorney  to  confess 
judgment  for  a  given  amount,  and  the  attorney  confessed  judg- 
ment for  a  much  larger  amount,  the  authority  of  the  attorney  to 
confess  being  incorporated  in  the  judgment,  the  landowner  was 
not  estopped  from  denying  the  validity  of  an  execution  sale  under 
the  judgment."  Cordray  v.  Neuhaus,  61  S.  W.  415,  25  Tex. 
Civ.  App.  247. 

§  1061.     Right  of  city  to  employ  counsel. 

A  city  whose  officers  have  failed  to  collect  taxes  may  make 
such  special  contracts  for  the  collection  of  its  back  taxes  as  it 
deems  to  the  best  interest  of  the  city,  and  invest  the  party  with 
whom  it  contracts  with  power  to  use  such  means  and  employ  such 
counsel  as  may  be  necessary  to  perform  his  undertaking."  City 
of  San  Antonio  v.  Raley,  32  S.  W.  180. 

§  1062.     Attorney's  fees — When  not  authorized. 

In  a  suit  by  a  city  to  collect  taxes,  a  judgment  for  plaintiff  for 
attorney's  fees  is  unauthorized.  Maddox  v.  City  of  Rockport, 
38  S.  W.  Rep.  397. 

§  1063.     Liable  for  reasonable  amount  for  services. 

A  city  is  liable  for  the  reasonable  value  of  the  services  of  an 
attorney  in  the  collection  of  its  delinquent  taxes,  though  the  con- 
tract between  the  city  and  attorney  for  such  services  was  invalid. 
Brand  v.  City  of  San  Antonio,  37  S.  W.  340;  San  Antonio  v. 
French,  80  Tex.  575 ;  Penn  v.  City  of  Laredo,  26  S.  W.  636. 

§  1064.     Failure  to  appoint  attorney. 

In  a  tax  collection  suit,  failure  to  appoint  an  attorney  to  repre- 
sent a  defendant  served  by  publication,  and  to  direct  the  case  to 
stand  continued  until  the  next  term  after  return  of  citation,  did 
not  render  the  judgment  absolutely  void.  Carr  v.  Miller,  123  S. 
W.  1158. 


666  Taxation  in  Texas. 

§  1065.     County  attorney  may  purchase  land  sold  at  tax  sale. 

Sayles'  Ann.  Civ.  St.  1897,  Art.  5232g,  providing  that,  where 
there  is  no  bidder  for  land  offered  for  sale  under  a  judgment 
foreclosing  a  lien  for  taxes,  the  county  attorney  shall  bid  the  same 
off  to  the  state,  etc.,  does  not  render  a  purchase  of  the  land  by 
the  county  attorney  for  his  own  use  void  as  contrary  to  public 
policy ;  the  state  being  a  purchaser  only  when  there  are  no  bid- 
ders.   Gibbs  V.  Scales,  118  S.  W.  188. 

§  1066.     County  attorney  must  assist  in  collecting  taxes  on 
contract. 

Under  Acts  29th  Leg.,  p.  318,  Chap.  130,  authorizing  the  com- 
missioners' court  to  contract  with  any  person  for  the  enforce- 
ment of  delinquent  taxes,  or  to  make  up  delinquent  tax  lists,  and 
requiring  the  county  attorney  to  assist  the  person  with  whom  the 
county  may  contract  to  enforce  the  collection  of  the  delinquent 
taxes,  for  a  percentage  thereof,  the  county  attorney  can  not  con- 
tract to  prepare  delinquent  tax  lists  and  collect  delinquent  taxes. 
Stringer  v.  Franklin  County,  123  S.  W.  1168. 


CHAPTER  LIX. 

LOCAL  IMPROVEMENTS  BY  ASSESSMENT. 

1067.  Act  of  31st  Legislature  au-       1073.  Suit  against  owner  of  prop- 

thorizing   cities   and   towns  erty  for  improvement  tax- 

to  construct  street  improve-  When,  etc. 

ments.  1074.  Constitutional. 

1068.  Taxes     for     local     improve-  1075.  Valid     street     improvement 
ments.  assessments. 

10C9.  Constitutional  provisions  as      1076.  According  to  benefits  derived, 
to  taxation.  1077.  Improvement  districts. 

1070.  Power  of  cities  incorporated       1078.  Local  improvements. 

under  general  law  to  have  1079.  Refunding     paving     certifl- 
street  graded,  etc.  cates. 

1071.  Estimate  of  cost  of  improve-  1080.  Improvements    of   sidewalks 
ment  shall  be  made.  under  police  power. 

1072.  Property  levied  on  and  sold  1081.  Street  railroads. 

for  taxes  for  improvements       1082.  Contractor  to  look  to  proper- 
— When  and  how,  etc.  ty  owner — ^Void  assessment. 

§  1067.     Act  of  31st  Legislature  authorizing  cities  and  towns 
to  construct  street  improvements. 

Section  1.  That  towns,  cities  and  villages  incorporated  under 
either  general  or  special  law,  which  shall  accept  the  benefits  of 
this  act  as  herein  provided,  shall  have  power  to  improve  any 
street,  avenue,  alley,  highway,  public  place  or  square,  or  any  por- 
tion thereof  within  their  limits,  by  filling,  grading,  raising,  paving 
or  repaving  the  same  in  a  permanent  manner  or  by  the  construc- 
tion or  reconstruction  of  sidewalks,  curbs  and  gutters  or  by  widen- 
ing, narrowing  or  straightening  the  same  and  to  construct  nec- 
essary appurtenances  thereto,  including  sewers  and  drains. 

Sec.  2.  That  the  term  "city"  whenever  used  herein  shall  in- 
clude all  incorporated  towns,  cities  and  villages ;  that  the  term 
"governing  body"  whenever  used  herein  shall  include  the  govern- 
ing or  legislative  bodies  of  all  incorporated  towns,  cities  or  vil- 
lages, whether  known  as  councils,  commissions,  boards  of  com- 
missions, common  councils,  boards  of  aldermen  or  city  councils. 


668  Taxation  in  Texas. 

or  whatever  name  such  bodies  may  be  known  or  designated  un- 
der general  or  special  laws ;  that  whenever  the  term  "highway" 
is  used  herein,  it  shall  include  any  street,  avenue,  alley,  high- 
way, or  public  place  or  square,  or  portion  thereof  dedicated  to 
public  use. 

Sec.  3.  That  the  governing  body  of  any  city  shall  have  power 
to  order  the  improvement  of  any  highway  therein,  or  part  thereof, 
and  to  select  the  materials  and  methods  for  such  improvement, 
and  to  contract  for  the  construction  of  such  improvements  in  the 
name  of  the  city,  and  to  provide  for  the  payment  of  the  cost  of 
such  improvements  out  of  any  available  funds  of  the  city  or  as 
herein  provided. 

Sec.  4.  That  the  cost  of  making  such  improvements  may  be 
wholly  paid  by  the  city  or  partly  by  the  city  and  partly  by  own- 
ers of  property  abutting  thereon ;  provided,  that  in  no  event  shall 
more  than  three-fourths  of  the  cost  of  any  improvement,  except 
sidewalks  and  curbs,  be  assessed  against  such  property  owners  or 
their  property;  but  the  whole  cost  of  construction  of  sidewalks 
and  curbs  in  front  of  any  property  may  be  assessed  against  the 
owner  thereof  or  his  property. 

Sec.  5.  Subject  to  the  terms  hereof  the  governing  body  of  any 
city  shall  have  power  to  assess  against  the  owner  of  any  railroad 
or  street  railroad  occupying  any  highway  ordered  to  be  improved, 
the  whole  cost  of  the  improvement  between  or  under  the  rails 
and  tracks  of  said  railroad  or  street  railroad  and  two  feet  on 
the  outside  thereof,  and  shall  have  power  by  ordinance  to  levy 
a  special  tax  upon  said  railroad,  or  street  railroad  and  its  road- 
bed, ties,  rails,  fixtures,  rights  and  franchises,  which  tax  shall 
constitute  a  lien  thereon  superior  to  any  other  lien  or  claim  ex- 
cept state,  county  and  municipal  taxes,  and  which  may  be  en- 
forced either  by  sale  of  said  property  in  the  manner  provided  by 
law  in  the  collection  of  ad  valorem  taxes  by  the  city,  or  by  suit 
against  the  owner  in  any  court  having  jurisdiction.  The  ordi- 
nance levying  said  tax  shall  prescribe  when  same  shall  become  due 
and  delinquent,  and  the  method  or  methods  of  enforcing  the  same. 
Sec.  6.  Subject  to  the  terms  hereof  the  governing  body  of  any 
city  shall  have  power  by  ordinance  to  assess  the  whole  cost  of 
constructing  sidewalks  or  curbs,  and  not  to  exceed  three-fourths 
of  the  cost  of  any  other  improvement,  against  the  owners  of  prop- 


Local  Improvement  by  Assessment.  669 

erty  abutting  on  such  improvement  and  against  their  abutting 
property  benefited  thereby,  and  to  provide  for  the  time  and  terms 
of  payment  of  such  assessments  and  the  rate  of  interest  payable 
upon  deferred  payments  thereon,  which  rate  of  interest  shall  not 
exceed  8  per  centum  per  annum,  and  to  fix  a  lien  upon  the  prop- 
erty and  declare  such  assessments  to  be  a  personal  liability  of  the 
owners  of  such  abutting  property,  and  such  governing  body  shall 
have  power  to  cause  to  be  issued  in  the  name  of  the  city  assign- 
able certificates,  declaring  the  liability  of  such  owners  and  their 
property  for  the  payment  of  such  assessments,  and  to  fix  the  terms 
and  conditions  of  such  certificate. 

If  any  such  certificate  shall  recite  that  the  proceedings  with 
reference  to  making  such  improvements  have  been  regularly  had 
in  compliance  with  law  and  that  all  prerequisites  to  the  fixing  of 
the  assessment  lien  against  the  property  described  in  said  certifi- 
cate, and  the  personal  liability  shall  be  prima  facie  evidence  of 
the  facts  so  recited  and  no  further  proof  thereof  shall  be  required 
in  any  court. 

The  ordinance  making  such  assessments  shall  provide  for  the 
collection  thereof  with  costs  and  reasonable  attorneys'  fees  if  in- 
curred. Such  assessments  shall  be  secured  by  and  constitute  a 
lien  on  said  property  which  shall  be  the  first  enforcible  claim 
against  the  property  against  which  it  is  assessed,  superior  to  all 
other  liens  and  claims,  except  state,  county  and  municipal  taxes. 

Sec.  7.  Nothing  herein  contained  shall  be  construed  to  em- 
power any  city  to  fix  a  lien  by  assessment  against  any  property 
exempt  by  law  from  sale  under  execution,  but  the  owner  of  such 
exempt  property  shall  nevertheless  be  personally  liable  for  the 
cost  of  improvements  constructed  in  front  of  his  property  which 
may  be  assessed  against  him.  The  fact  that  any  improvement  is 
omitted  in  front  of  exempt  property  shall  not  invalidate  the  lien 
of  assessments  made  against  other  property  on  the  highway  im- 
proved, not  so  exempt.  The  lien  created  against  any  property  or 
the  personal  liability  of  the  owner  thereof,  may  be  enforced  bv 
suit  in  any  court  having  jurisdiction  or  by  sale  of  the  property 
assessed  in  the  same  manner  as  may  be  provided  by  law  for  the 
sale  of  property  for  ad  valorem  city  taxes.  The  recital  in  any 
deed  made  pursuant  to  such  sale,  that  all  legal  prerequisites  to  said 
assessment  and  sale  have  been  complied  with,  shall  be  prima  facie 


670  Taxation  in  Texas. 

evidence  of  the  facts  so  recited  and  shall  in  all  -courts  be  accepted 
without  further  proof. 

Sec.  8.  No  assessment  of  any  part  of  the  cost  of  such  improve- 
ment shall  be  made  against  any  property  abutting  thereon  or  its 
owner,  until  a  full  and  fair  hearing  shall  first  have  been  given 
to  the  owner  of  such  property  preceded  by  a  reasonable  notice 
thereof  given  to  said  owners,  their  agents,  or  attorneys.  Such 
notice  shall  be  by  advertisement  inserted  at  least  three  times  in 
some  newspaper  published  in  the  city,  town  or  village  where  such 
tax  is  sought  to  be  improved,  [levied]  if  there  be  such  a  paper 
theref,  if  not  the  nearest  to  said  city,  town  or  village,  of  general 
circulation  in  the  county  in  which  said  city  is  located,  the  first 
publication  to  be  made  at  least  ten  days  before  the  date  of  the 
hearing.  The  governing  body  may  provide  for  additional  notice 
cumulative  of  notice  by  advertisement.  Said  hearing  shall  be  be- 
fore the  governing  body  of  such  cities,  at  which  hearing  such  own- 
ers shall  have  the  right  to  contest  the  said  assessment  and  per- 
sonal liability,  and  the  regularity  of  the  proceedings  with  refer- 
ence to  the  improvement,  and  the  benefits  of  said  improvement  to 
their  property,  and  any  other  matter  with  reference  thereto. 

But  no  assessment  shall  be  made  against  any  owner  of  abut- 
ting property  or  his  property  in  any  event  in  excess  of  the  actual 
benefit  to  such  owner  in  the  enhanced  value  of  his  property  by 
means  of  such  improvements  as  ascertained  at  such  hearing. 

The  governing  body  of  any  city  making  improvements  under 
the  terms  hereof  shall  by  ordinance  adopt  rules  and  regulations 
providing  for  such  hearings  to  property  owners,  and  for  giving 
reasonable  notice  thereof. 

Sec.  9.  The  governing  body  of  any  city  shall  be  empowered 
to  correct  any  mistake  or  irregularity  in  any  proceedings  with 
reference  to  such  improvement  or  the  assessment  of  the  cost 
thereof  against  abutting  property  and  its  owners,  and  in  case  of 
any  error  or  invalidity  to  re-assess  against  any  abutting  property 
and  its  owner  the  cost  or  part  of  the  cost  of  improvements  subject 
to  the  terms  hereof  not  in  excess  of  the  benefits  in  enhanced 
value  of  such  property  from  such  improvement,  and  to  make 
reasonable  rules  and  regulations  for  a  notice  to  and  hearing  of 
property  owners  before  such  reassessment.  . 

Sec.  10.    Any  property  owner  against  whom  or  whose  property 


Local  Improvement  by  Assessment.  671 

any  assessment  or  reassessment  has  been  made  shall  have  the  right 
within  twenty  days  thereafter  to  bring  suit  in  any  court  having 
jurisdiction  to  set  aside  or  correct  the  same  or  any  proceeding 
with  reference  thereto,  on  account  of  any  error  or  invalidity  there- 
in. But  thereafter  such  owner,  his  heirs,  assigns  or  successors 
shall  be  barred  from  any  such  action,  or  any  defense  of  invalidity 
in  such  proceedings  or  assessments  or  reassessments  in  any  ac- 
tion in  which  the  same  may  be  brought  in  question. 

Sec.  11.  The  benefits  of  this  act  shall  apply  to  any  city  and  the 
terms  thereof  extend  to  the  same,  when  the  governing  body 
thereof  shall  submit  the  question  of  the  adoption  or  rejection 
hereof,  to  a  vote  of  the  resident  property  taxpayers  who  are  qual- 
ified voters  of  said  city  at  a  special  election  called  for  the  purpose 
by  said  city.  And  said  election  shall  be  held  as  nearly  as  possible 
in  compliance  with  the  law  with  reference  to  regular  city  elections 
in  said  city;  but  said  governing  body  is  hereby  empowered  by 
resolution  to  order  said  election  and  prescribe  the  time  and  man- 
ner of  holding  the  same.  Said  body  shall  canvass  and  determine 
the  results  of  such  election  and  if  a  majority  of  the  voters  voting 
upon  the  question  of  the  adoption  of  this  act  at  such  election  shall 
vote  to  adopt  the  same,  the  result  of  the  election  shall  by  said 
governing  body  be  entered  upon  their  minutes,  and  thereupon  all 
the  terms  hereof  shall  be  applicable  to  and  govern  such  city  adopt- 
ing the  same.  A  certified  copy  of  said  minutes  shall  be  prima  facie 
evidence  of  the  result  of  such  election  and  the  regularity  thereof, 
and  the  facts  therein  recited  shall  in  all  courts  be  accepted  as 
true.  Whenever  this  act. has  been  adopted  by  any  city  the  gov- 
erning body  thereof  shall  have  full  power  to  pass  all  ordinances 
or  resolutions  necessary  or  proper  to  give  full  force  and  eflfect 
thereto  and  to  every  part  thereof.  Whenever  one  hundred  qual- 
ified voters  in  any  city  shall  in  writing  petition  for  an  election  to 
determine  the  adoption  of  this  act,  it  shall  be  the  duty  of  its  gov- 
erning body  to  order  such  election. 

Sec.  12.  This  act  shall  not  repeal  any  law,  general  or  special, 
already  in  existence,  pertaining  to  the  making  of  such  improve- 
ments, but  the  provisions  of  this  act  and  of  resolutions  or  ordi- 
nances passed  pursuant  thereto,  shall  be  cumulative  of  and  in 
addition  to  such  existing  laws  ;  provided,  that  in  any  case  in  which 
a  conflict  may  exist  or  arise  between  the  provisions  of  this  act 


672  Taxation  in  Texas. 

and  the  provisions  of  any  law  granting  a  special  charter  to  any 
city  in  the  state,  the  provisions  of  such  special  charter  shall  con- 
trol.   Acts31stLeg.,  pp.  402to405. 

§  1068.     Taxes  for  local  improvements. 

The  authority  for  making  assessment  for  local  improvements 
is  desirable  from,  and  an  exercise  of,  the  taxing  power  and  not 
that  of  eminent  domain.  Roundtree  v.  City  of  Galveston,  A2  Tex. 
612. 

§  1069.     Constitutional  provisions  as  to  taxation. 

It  is  clearly  settled  by  the  great  weight  of  authority  that  the 
constitutional  provisions  having  reference  to  taxes  for  general 
revenue,  that  they  shall  be  equal  and  uniform,  etc.,  are  not  ap- 
plicable to  assessments  for  local  improvements;  and  held  that  suit 
could  be  maintained  by  the  city  for  the  assessment  for  local  im- 
provement against  the  adjoining  lot  owner,  of  one-third  of  the 
costs  of  such  improvement.  Roundtree  v.  City  of  Galveston,  A2 
Tex.  612. 

§  1070.     Power  of  cities  incorporated  under   general  law  to 
have  street  graded,  etc. 

The  city  council  shall  be  invested  with  full  power  and  authority 
to  grade,  gravel,  repair,  pave  or  otherwise  improve  any  avenue, 
street  or  alley,  or  any  portion  thereof,  within  the  limits  of  said 
city,  whenever,  by  a  vote  of  two-thirds  of  the  aldermen  present, 
they  may  deem  such  improvement  for  the  public  interest ;  pro- 
vided, the  city  council  pay  one-third  and  the  owner  of  the  prop- 
erty two-thirds  thereof,  except  at  the  intersection  of  the  streets, 
from  lot  to  lot  across  the  streets  either  way,  shall  be  paid  for  by 
the  city  alone,  and  said  costs  shall  be  assessed  on  the  property 
fronting  on  said  street  so  improved,  to  be  collected  in  equal  an- 
nual payments,  not  less  than  five  in  number,  and  all  moneys  col- 
lected from  these  assessments  shall  be  appropriated  exclusively 
to  the  payment  of  the  bonds  issued  for  the  payment  of  the  cost 
of  said  improvement.    Sayles  R.  S.,  Art.  544. 

City  liable  for  defects  in  sidewalk  if  it  have  notice,  either  actual 
or  constructive,  and  it  is  not  material  whether  the  sidewalk  was 
built  by  the  city  or  by  a  private  person.  The  city  is  charged  with 
notice  if  it  could  have  discovered  the  defect  by  ordinary  diligence. 
Klein  v.  City  of  Dallas,  71  Tex.  280,  8  S.  W.  90;  City  of  Austin 


Local  Improvement  by  Assessment.  673 

V.  Kits,  72  Tex.  391,  9  S.  W.  884.  See  City  of  Galveston  v.  Pos- 
nainsky,  62  Tex.  118;  Phillips  v.  City  of  Dallas,  3  App.  C.  C.  294. 

A  city  or  town  incorporated  under  the  general  law  is  responsi- 
ble in  damages  for  an  injury  inflicted  under  circumstances  which 
would  fix  liability  on  a  city  or  town  incorporated  under  special 
enactment,  clothed  with  the  same  power  and  charged  with  the 
same  duties.  Baugus  v.  City  of  Atlanta,  74  Tex.  629,  12  S.  W. 
750. 

When  a  city  negligently  allows  a  culvert  to  become  stopped  up, 
it  is  liable  for  damages  caused  thereby.  Cif'\'  of  Dallas  v.  Schults, 
27  S.  W.  292. 

Where  a  street  in  an  unfrequented  part  of  a  city  is  not  opened 
for  public  use  the  city  is  not  responsible  for  damages  by  reason  of 
its  defective  condition.  If  used  frequently  by  the  public,  the  city 
is  responsible.  Klein  v.  City  of  Dallas,  71  Tex.  280,  8  S.  W.  90; 
City  of  Galveston  v.  Posnmnsky,  62  Tex.  119;  City  of  Austin  v. 
Kits,  72  Tex.  391,  9  S.  W.  884.  See  City  of  Texarkana  v.  Tal- 
bot, 26  S.  W.  451,  7  C.  A.  202. 

A  thoroughfare  in  a  city  shown  to  be  a  street  by  its  use,  etc. 
City  of  Waxahachie  v.  Connor,  35  S.  W.  692. 

The  power  must  be  exercised  by  ordinance  or  resolution.  City 
of  Waco  V.  Prather,  37  S.  W.  312. 

§  1071.     Estimate  of  cost  of  improvement  shall  be  made. 

Whenever  the  city  council  shall  determine  to  make  any  such 
improvement,  they  shall  cause  an  estimate  to  be  made  of  the 
probable  cost  thereof  by  the  city  engineer,  or  by  some  other  offi- 
cer of  the  city,  or  by  a  committee  of  three  aldermen ;  and  such 
engineer  or  other  officer  or  committee  shall  also  report  a  full  list 
of  all  lots  or  fractional  lots,  giving  number  and  size  of  the  same, 
and  the  number  of  the  block  in  which  situated,  and  the  names  of 
the  owners  thereof  if  known,  and  such  other  information  as  may 
be  required  by  the  city  council,  and  if  there  be  any  lot  or  frac- 
tional lot  the  owner  of  which  is  not  known,  the  same  shall  be 
entered  on  said  list  as  unknown ;  it  shall  be  the  duty  of  the  offi- 
cer or  committee  aforesaid  to  enter  on  said  list  opposite  each 
lot  or  fractional  lot  lying  and  being  on  each  side  of  the  street, 
avenue  or  alley  so  to  be  improved  as  aforesaid,  one-third  of  the 
estimated  expense  for  such  work  or  improvement  on  such  avenue, 

43 


674  Taxation  in  Texas. 

street  or  alley,  fronting,  adjoining  or  opposite  such  lot  or  frac- 
tional lot ;  and  on  the  acceptance  and  approval  of  said  report  and 
list  by  the  city  council,  said  amount  shall  be  imposed,  levied 
and  assessed  as  taxes  and  shall  be  a  lien  upon  the  property  until 
the  payment  of  the  same.    Sayles  R.  S.,  Art.  545. 

This  article  provides  how  the  estimate  of  the  cost  of  such  im- 
provements shall  be  made,  and  declares  that  the  amount  imposed 
shall  be  levied  and  assessed  as  taxes  and  shall  be  a  lien  upon  the 
property  until  the  payment  of  the  same.  These  grants  of  power 
must  be  strictly  construed  and  the  statute  closely  followed.  Bor- 
dages  V.  Higgins,  1  C.  A.  43,  19  S.  W.  446,  20  S.  W.  184,  726. 

The  assessment,  the  report  of  the  committee  and  its  acceptance 
and  approval  by  the  council,  are  conditions  precedent  to  the  let- 
ting of  the  contract.    City  of  Corsicana  v.  Kerr,  35  S.  W.  794. 

The  report  is  a  condition  precedent  to  the  improvement  the  fail- 
ure to  make  which  renders  a  levy  and  assessment  void.  Kerr  v. 
City  of  Corsicana,  35  S.  W.  694. 

§  1072.     Property  levied  on  and  sold  for  taxes  for  improve- 
ments, when  and  how,  etc. 

After  such  action  on  the  part  of  the  city  council  as  above  pro- 
vided for,  such  officer  or  committee  shall  give  such  notice  as  may 
be  required  by  ordinance,  of  said  tax  being  due  and  within  what 
time  payable,  and  shall  commence  forthwith  to  collect  the  same. 
And  after  the  expiration  of  the  period  for  payment  of  said  tax, 
said  officer  or  committee  shall  levy  on  so  much  of  any  property 
on  said  list  on  which  said  tax  has  not  been  paid  as  will  be  sufficient 
to  pay  the  same,  and  the  same  notice  of  sale  as  is  required  in 
sales  for  other  tax  shall  be  given ;  and  if  said  tax  be  not  paid 
before  the  day  of  sale,  said  officer  or  committee  shall  sell  said 
property  in  the  name  and  under  the  circumstances  and  to  the  ex- 
tent and  subject  to  the  same  conditions  which  are  or  may  be  pro- 
vided by  ordinance  for  sale  of  real  estate  in  the  city,  charged  with 
the  payment  of  taxes  imposed  by  said  corporation;  and  said  offi- 
cer or  committee  shall  execute  a  deed  to  the  purchaser  at  any 
such  sale,  and  all  other  provisions  of  this  title  in  reference  to  a 
deed  drawn  by  the  assessor  and  collector  shall  apply  to  the  deed 
provided  for  in  this  article.    Sayles  R.  S.,  Art.  546. 

Article  544,  supra-,  requires  that  the  tax  shall  be  collected  in 
not  less  than  five  annual  payments.    The  above  article  provides 


Local  Improvement  by  Assessment.  675 

that  the  levy  shall  be  on  so  much  property  as  shall  be  sufficient 
to  pay  the  same,  and  like  notice  of  sale  as  in  sales  for  other  taxes 
shall  be  given,  and  sale  shall  be  subject  to  the  same  conditions 
provided  by  ordinance  for  .other  tax  sales.  One  of  the  important 
rights  here  secured  to  the  owner  is  a  sale  of  the  smallest  portion 
of  the  ground  that  any  person  will  take  and  pay  the  taxes.  Bor- 
dages  V.  Higgins,  1  C.  A.  43,  19  S.  W.  446,  20  S.  W.  184,  726. 

§  1073.     Suit  against  owner  of  property  for  improvement  tax, 
when,  etc. 

In  addition  to  the  power  and  authority  granted  to  the  city 
council  to  collect  said  assessment  of  taxes  as  aforesaid,  they  shall 
have  the  further  power  and  additional  remedy  of  instituting  suit 
in  the  corporate  name  in  any  court  having  jurisdiction  for  the  re- 
covery against  any  owner  of  property  for  the  amount  due  for  any 
such  work  so  made  as  aforesaid ;  and  the  city  council  shall  pro- 
vide, by  resolution  or  ordinance  under  the  provisions  of  this  title 
for  carrying  out  and  executing  the  powers  in  this  chapter  con- 
ferred, and  may  adopt  such  resolutions  and  enact  such  ordinances 
and  make  such  regulations  as  they  may  deem  necessary.  Sayles 
R.  S.,  Art.  547. 

This  article  authorizes  suit  as  an  additional  remedy.  It  only 
authorizes  personal  suit  and  moneyed  judgment  against  the  owner 
for  the  amount  due.  It  does  not  authorize  a  suit  against  the  prop- 
erty, nor  one  against  the  owner  and  the  property  together.  A  lien 
is  given  by  statute  and  the  manner  of  its  enforcement  is  provided. 
Suit  may  only  be  brought  against  the  owner  for  the  "amount  due." 
Bordages  v.  Higgins,  1  C.  A.  43,  19  S.  W.  446,  20  S.  W.  184,  726. 

§  1074.     Constitutional. 

The  fact  that  a  statute  authorizes  the  collection  of  an  assess- 
ment for  a  street  improvement  before  the  work  is  done  and  before 
benefits  can  have  accrued  does  not  render  it  unconstitutional.  City 
of  Austin  V.  Nalle,  120  S.  W.  996. 

§  1075.     Valii  street  improvement   assessments. 

Under  the  Paris  city  charter,  giving  the  city  council  power  to 
make  street  improvements,  to  assess  so  much  of  the  cost  as  may 
be  deemed  proper  against  property  specially  benefited,  and  by 
ordinance  or  resolution  prescribe  the  procedure  for  ordering  and 
making  such  improvements,  where  a  resolution  was  passed  de- 


676  Taxation  in  Texas. 

daring  the  purpose  to  make  a  street  improvement,  describing  the 
portion  of  the  street  to  be  improved,  the  character  of  the  improve- 
ment, and  adopting  complete  plans  and  specifications  with  the  es- 
timated cost,  providing  and  giving  the  required  notice  to  abutting 
property  owners  to  be  heard  before  assessments  were  levied  and 
finally  determined  upon,  and  after  the  time  of  notice  and  hearing, 
the  public  advertisement,  for  bids,  and  the  letting  of  the  contract 
to  the  lowest  bidder,  and  the  determination  of  the  proportionate 
cost  to  be  borne  by  each  property  owner  as  his  property  was 
enhanced  in  value,  and  according  to  the  frontage  on  the  improve- 
ment, all  the  steps  provided  for  and  intended  for  the  protection 
of  the  property  owner  were  taken  by  the  city  council,  and  a  levy 
made  on  property  benefited  to  pay  for  a  part  of  the  improvement, 
made  pursuant  thereto,  was  valid. 

Paris  City  Charter,  Sec.  138,  empowering  the  city  council  to 
order  public  improvements,  and  Section  147,  directing  the  method 
of  procedure,  are  not  unconstitutional,  as  depriving  any  person 
of  property  without  due  process  of  law,  since  the  charter  pro- 
vides for  full  hearing  on  all  matters  affecting  the  property  and 
claims  for  liability  against  the  person,  and  for  notice  to  appear 
and  object  to  the  proposed  amendments,  and  by  Section  144  pro- 
vides that  any  person  interested  in  any  property  claimed  to  be 
subject  to  assessment  under  the  charter  is  entitled  to  full  hearing 
before  the  city  council  on  all  matters  aflfecting  the  property  or 
personal  liability. 

Paris  City  Charter,  Sec.  138,  empowering  the  city  council  to 
order  public  improvements  and  assess  a  part  of  the  expense 
against  the  property  specially  benefited,  and  Section  147,  pro- 
viding that  they  may  by  resolution  or  ordinance  prescribe  the 
method  of  procedure  in  making  the  improvement  and  assessing 
the  benefits  against  the  property  benefited,  are  not  violative  of 
Const.,  Art.  1,  Sec.  15,  guaranteeing  the  right  of  trial  by  jury, 
since  the  assessment  of  property  for  the  cost  of  improvements  is 
a  tax,  as  to  which  property  owners  are  not  entitled,to  a  jury. 

Const.,  Art.  1,  Sec.  17,  providing  that  private  property  shall  not 
be  taken  for  a  public  use  without  compensation,  has  no  reference 
to  proceedings  under  Paris  City  Charter,  Sec.  138,  empowering 
the  city  council  to  order  public  improvements,  and  Section  147, 
directing  the  method  of  procedure  for  making  the  improvement 
and  assessing  the  benefits  against  property  benefited 


Local  Improvement  by  Assessment.  ^77 

Paris  City  Charter,  Sec.  138,  empowering  the  city  council  to 
order  public  improvements  and  assess  the  property  benefited  to 
pay  the  cost  of  part  of  the  improvement,  and  Section  147,  direct- 
ing the  method  of  procedure,  which  provides  for  notice  to  the 
property  owners  assessed  and  hearing  before  the  council,  but 
makes  no  provision  for  appeal  therefrom,  do  not  contravene 
Const.,  Art.  1,  Sec.  15,  providing  that  the  courts  shall  be  open  to 
every  person  for  injury  done  to  his  lands,  since  taking  of  the  prop- 
erty under  the  taxing  power  is  taking  under  the  process  of  law. 

Const.,  Art.  8,  Sec.  1,  providing  that  taxes  shall  be  equal  and 
uniform,  does  not  apply  to  special  assessments  for  public  improve- 
ments.   City  of  Paris  v.  Brenneman,  126  S.  W.  58. 

§  1076.     According  to  benefits  derived. 

Considered  as  a  city,  the  expense  of  paving  a  street  may  be  lev- 
ied upon  the  whole  city  or  a  system  of  improvement  may  be  re- 
sorted to  analogous  to  that  which  is  adapted  in  the  construction 
and  working  of  highways  in  general ;  that  is  to  say,  the  cost  of 
any  such  work  may  be  assessed  on  that  part  of  the  city  which  re- 
ceives peculiar  benefits  from  it.  The  latter  method  would  re- 
quire either  a  division  of  the  city  into  taxing  districts  for  several 
local  improvements  within  it,  or  the  creation  of  a  special  taxing 
district  for  each  improvement,  setting  apart  for  the  purpose  that 
portion  of  the  city  which  was  believed  to  receive  the  special  bene- 
fits. These  special  taxing  districts  are  most  common,  and  they 
are  either  fixed  after  the  examination  of  the  circumstances  of  each 
particular  case,  with  a  view  of  ascertaining  how  far  the  special 
benefits  extend  and  what  property  shares  in  them,  or  they  are 
determined  by  some  general  rule,  which  thodgh  it  may  not  be 
strictly  just  in  any  particular  case,  will,  in  the  main  it  is  supposed, 
apportion  all  such  expenses  with  reasonable  equality  and  fairness. 
Whether  one  course  or  the  other  shall  be  adopted  must  be  de- 
termined by  competent  legislation.  Cooley  on  Taxation  (3d  ed.), 
234 ;  Kettle  v.  City  of  Dallas,  80  S.  W.  878,  35  Tex.  Civ.  App.  632. 

§  1077.     Improvement  districts. 

The  power  to  determine  what  shall  be  a  taxing  district  for  any 
particular  burden  is  purely  a  legislative  power,  and  not  to  be  in- 
terfered with  or  controlled,  except  as  it  may  be  limited  or  re- 
strained by  constitutional  provisions.  The  legislature  judges  final- 
ly and  conclusively  upon  all  questions  of  policy,  as  it  may  also 


678  Taxation  in  Texas. 

upon  all  questions  of  fact  which  are  involved  in  the  determination 
of  a  taxing  district.  Such  districts  may  be  as  numerous  as  the 
purposes  for  which  taxes  are  levied.  Kettle  v.  City  of  Dallas,  80 
S.  W.  878,  35  Tex.  Civ.  App.  632;  Cooley  on  Taxation  (3d  ed.), 
336. 

§  1078.     Local  improvements. 

The  act  of  the  Twenty-seventh  Legislature,  amending  the  char- 
ter of  the  city  of  Dallas  and  providing  for  the  creation  of  im- 
provement districts  by  the  city  council,  which  districts  are  to  in- 
clude the  real  estate  deemed  benefited  by  any  local  improvement 
and  also  providing  for  the  assessment  of  such  real  estate  for  the 
improvement  and  for  the  issuance  of  bonds  or  assessments  war- 
rants does  not  violate  any  provision  of  either  the  state  or  federal 
constitutions. 

In  a  suit  brought  against  the  city  of  Dallas  and  the  Baker  As- 
phalt Co.  to  enforce  the  assessment  and  collection  of  the  tax  upon 
a  homestead  situated  within  an  improvement  district  upon  the 
ground  that  the  amendment  of  the  charter  upon  which  the  pro- 
ceedings were  had  creating  the  improvement  district,  and  the  pro- 
ceedings of  the  council  thereunder  in  taxing  and  changing  any 
part  of  the  cost  of  the  improvement  of  the  street  against  his  home- 
stead, are  unconstitutional  and  void,  and  cast  a  cloud  upon  his 
title  to  such  property,  the  court  of  civil  appeals  in  a  case  in  which' 
a  writ  of  error  was  denied  by  the  supreme  court  says :  "But  to 
uphold  the  legislation  under  which  the  proceedings  sought  to  be 
enjoined  in  this  case  were  had  it  is  not  necessary  that  the  power 
of  the  legislature  be  extended  as  far  as  it  was  sanctioned  by  the 
supreme  court  in  Webster  v.  Fargo  and  other  cases  above  cited. 
But  it  may,  so  far  as  this  case  is  concerned  be  brought  within  the 
rule  'that  the  cost  of  a  local  improvement  can  be  assessed  upon 
particular  property  only,  to  the  extent  that  it  is  specially  and  pe- 
culiarly benefited ;  and  since  the  excess  beyond  that  is  a  benefit  to 
the  municipality  at  large  it  must  be  borne  by  the  general  treas- 
ury.' "  2  Dill  Mun.  Corp.  (4th  ed.),  p.  935,  Sec.  761.  And  this 
seems  to  be  in  accordance  with  the  views  expressed  by  the  Su- 
preme Court  of  this  state  in  Storrie  v.  Cortes,  90  Tex.  283,  38  S. 
W.  154,  35  L.  R.  A.  666.  Upon  the  whole,  to  use  the  language  of 
the  Supreme  Court  of  Indiana  in  Adams  v.  Shelbyville,  57  N.  E. 
118,  49  L.  R.  A.  802,  77  Am.  St.  484:    "We  conclude  *  *  *  that 


Local  Improvement  by  Assessment.  679 

the  principles  applicable  to  assessments  for  local  improvements 
are  these :  The  legislature  may  create  a  local  taxing  district  for 
local  improvement  purposes,  which  includes  part  only  of  the  prop- 
erty within  the  municipality.  The  legislature  may  declare  con- 
clusively that  only  the  property  within  the  taxing  districts  shall 
be  separately  assessed  on  account  of  the  local  improvement  within 
that  district.  Each  parcel  of  contributing  property  may  be  as- 
sessed only  to  the  extent  that  it  actually  receives  special  benefits. 
The  taxing  district,  as  a  whole,  may  be  assessed  only  to  the  extent 
of  the  sum  of  the  special  benefits  actually  received  by  the  special 
parcels  of  contributing  property.  The  improvements  so  far  as 
its  costs  exceeds  the  special  benefits  resulting  to  the  several  par- 
cels of  property  in  the  taxing  district,  is  a  benefit  to  the  munici- 
pality at  large  and  such  excess  must  be  borne  by  the  general  treas- 
ury. Prop'erty  owners  aflfected  by  the  improvement  within  a  tax- 
ing district  are  entitled  to  a  hearing  on  the  question  of  specific 
benefits."  All  the  principles  thus  enunciated  are  present  in  the  act 
of  the  legislature  under  consideration  and  everything  required  by 
the  legislature  in  the  act  has  been  complied  with  by  the  city  coun- 
cil. "The  legislative  power  of  the  state  means  all  the  power  of 
the  people  which  may  properly  be  exercised  in  the  formation  of 
laws  against  which  there  is  no  inhibition,  expressed  or  implied, 
in  the  fundamental  law.  Since  the  municipal  corporation  can  not 
exist  except  by  legislative  authority,  and  can  exercise  no  power 
which  is  not  granted  by  the  legislature,  it  follows  that  the  crea- 
tion of  such  corporations,  and  every  provision  with  regard  to  their 
organization  was  the  exercise  of  legislative  power  which  inheres 
in  the  whole  people  but  by  the  constitution  is  delegated  to  the  leg- 
islature. Therefore  it  is  within  the  power  of  the  legislature  to 
determine  what  form  of  government  will  be  most  beneficial  to  the 
public  and  the  people  in  a  particular  community.  It  is  well  set- 
tled principle  of  constitutional  construction  that  the  power  of  the 
legislature  can  be  restrained  only  by  a  prohibition  expressed  or 
implied,  from  some  provision  or  provisions  of  the  constitution  it- 
self." Brown  v.  City  of  Galveston  (Tex.  Sup.),  75  S.  W.  495,  and 
authorities  cited. 

We  can  not  perceive  that  any  constitutional  provision,  either 
state  or  national,  is  violated  or  trenched  upon  by  the  act  amend- 
ing the  charter  of  the  city  of  Dallas,  or  the  resolution  of  the  city 


680  -  Taxation  in  Texas. 

in  pursuance  of  such  an  amendment  creating  the  improvement  dis- 
tricts, or  the  proceedings  had  thereunder  by  the  city  council  pro- 
viding for  the  improvement  and  the  assessment  and  levy  of  the 
tax  to  pay  therefor.  The  appellant's  property  within  the  district 
is  enhanced  rather  than  depreciated  in  value  by  the  provision  in 
the  resolution  that  requires  the  street  railway  company  to  pay 
the  costs  of  paving  between  the  rails  and  tracks  of  its  railway 
and  for  two  feet  on  either  side.  This  provision  is  expressly 
authorized  by  the  original  charter  of  the  city,  and  not  affected 
bv  the  amendment.  The  constitutionality  of  a  similar  provision  in 
the  charter  of  the  city  of  Houston  was  upheld  by  the  supreme 
court  of  this  state  in  Storrie  v.  Street  Railway  Co.,  92  Tex.  129, 
46  S.  W.  796,  44  L.  R.  A.  716.  It  does  not  deprive  appellant  of 
his  property  without  due  process  of  law.  It  does  not  and  can  not 
exceed  the  amount  of  the  ad  valorem  tax  limit  on  propeVty  within 
cities  exceeding  10,000  inhabitans.  The  tax  within  the  improve- 
ment districts  is  equal  and  uniform  upon  all  the  real  property  in 
the  district.  The  property  upon  which  it  is  assessed  is  enhanced 
in  value  beyond  the  amount  of  taxes  assessed  against  it,  and,  it 
being  a  tax,  though  it  may  be  regarded  as  special,  appellant's 
property,  though  it  is  his  homestead,  under  Section  50,  Article  16, 
of  the  Constitution,  even  as  construed  by  the  supreme  court  in 
Higgem  v.  Bordages,  88  Tex.  458,  31  S.  W.  52,  803,  53  Am.  St. 
770,  is  subject  to  the  levy  and  payrnent  of  such  tax.  If  this  be  not 
so,  then  our  homestead  laws  stand  in  the  way  and  prevent  gov- 
ernment from  exercising  the  powers  and  functions  for  which  it 
was  inaugurated,  and  bars  the  way  of  progress  and  civilization. 
Kettle  V.  City  of  Dallas,  80  S.  W.  878,  35  Tex.  Civ.  App.  632. 

§  1079.     Refunding  paving  certificates. 

Houston  City  Charter,  Sec.  40b  (Special  Laws  26th  Leg.,  p. 
192,  Chap.  17),  authorizing  the  city  council  to  refund  money 
previously  paid  for  paving  by  persons  in  front  of  their  property 
according  to  the  front  foot  mile,  and  to  provide  how  the  same 
shall  be  paid  was  not  unconstitutional,  the  sum  to  be  refunded  not 
being  a  debt  within  Const.,  Art.  11,  Sees.  5  and  7,  providing  that 
no  debt  shall  be  created  by  the  city  unless  at  the  same  time  pro- 
vision shall  be  made  for  payment  by  the  creation  of  a  sinking 
fund.  It  did  not  grow  out  of  any  contract  between  the  parties, 
but  originated  from  the  collection  of  an  assessment  made  by  the 


Local  Improvement  by  Assessment.  681 

city  upon  the  property  of  persons  to  whom  it  was  to  be  returned 
and  for  sound  reasons  the  city  was  authorized  by  the  state  to  re- 
turn that  sum  (McNeal  v.  Waco,  89  Tex.  83,  33  S.  W.  322).  The 
assessment  made  for  street  improvements  was  based  upon  a  poHcy 
which  was  thereafter  abandoned,  and  the  plan  of  improving  streets 
of  the  city  by  taxation  adopted.  It  would  be  a  great  injustice  to 
property  holders  who  had  already  paid  for  the  improvements  of 
streets  in  front  of  their  property  to  subject  them  to  taxation  for 
a  general  system  of  such  improvements,  from  which  they  could 
receive  no  benefit,  without  restoring  to  them  that  which  they  had 
already  paid  to  the  city  for  that  purpose.  It  was  within  the 
power  of  the  legislature  to  authorize  the  city  to  make  an  equitable 
adjustment  of  these  matters  so  as  to  equalize  the  burden  upon 
the  property  of  the  citizens.  City  of  Houston  v.  Stewart,  87  S. 
W.  663,  99  Tex.  67. 

§  1080.     Improvements  of  sidewalks  under  police  power. 

Questioned  whether  the  ruling  in  Hutcheson  v.  Storrie,  92  Tex. 
685,  and  Norwood  v.  Baker,  172  U.  S.  269,  as  to  the  constitu- 
tionality of  local  assessments  for  street  improvements,  applies  to 
the  construction  of  sidewalks  at  the  expense  of  abutting  owners, 
the  latter  rather  falling  under  the  city's  power  of  police  than  that 
of  taxation.     Lents  v.  City  of  Dallas,  96  Tex.  258. 

§  1081.     Street  railroads. 

Under  Houston  City  Charter,  Sec.  23a,  providing  that  the  costs 
of  a  street  improvement  shall  be  a  charge  against  abutters,  and 
that  a  street  railway  company  shall  be  liable  for  costs  of  paving 
between  the  rails  and  for  six  inches  on  each  side,  such  company 
is  liable  for  paving  to  the  extent  stated,  notwithstanding  a  reso- 
lution of  the  city  council  providing  that  the  cost  of  the  improve- 
ments shall  be  wholly  defrayed  by  the  abutters  as  provided  in 
Section  23a,  the  resolution  referring  to  the  cost  of  the  portion  to 
be  paid  for  by  the  abutters. 

Houston  City  Charter,  Sec.  23a,  providing  for  street  improve- 
ments at  the  cost  of  abutters,  does  not  violate  Const.  1895,  Art. 
3,  Sec.  48,  which  provides  that  the  legislature  can  not  levy  taxes 
or  impose  burdens  except  to  raise  revenue  for  the  administration 
of  the  government,  this  provision  not  referring  to  the  action  of  the 
legislature  conferring  authority  on  a  municipal  corporation  to  levy 
taxes. 


682  Taxation  in  Texas. 

Under  Const.  1895,  Art.  1,  Sec.  17,  providing  that  no  irrevoca- 
ble or  uncontrollable  grant  of  special  immunities  shall  be  made, 
but  all  privileges  and  franchises  created  under  the  authority  of 
the  legislature  shall  be  subject  to  its  control,  the  legislature  had 
the  right  to  amend  Houston  city  charter  so  that  a  street  car  com- 
pany became  liable  for  the  cost  of  paving  six  inches  on  each  side 
of  its  tracks  in  addition  to  its  former  liability  of  paving  between 
the  rails,  and  such  law  was  not  unconstitutional  as  imparing  the 
obligation  of  a  contract  in  reference  to  a  prior  mortgage  executed 
while  the  constitutional  provision  was  in  force. 

Under  Houston  City  Charter,  Sec.  23a,  requiring  the  city  en- 
gineer to  prepare  a  roll  showing  the  number  of  lots  or  blocks 
fronting  on  a  tract  to  be  improved,  the  names  of  the  owners,  the 
number  of  feet  frontage  of  such  lot  or  block,  and  the  propor- 
tionate cost,  and  the  fotal  to  be  borne  by  each ;  and  Section  23e, 
providing  that  delinquent  assessments  for  such  improvement  shall 
bear  8  per  cent  interest, — a  street  car  company  is  not  excused 
from  being  placed  on  the  roll  and  from  paying  8  per  cent  interest 
by  reason  of  its  being  mentioned  among  the  item's  of  property  to 
be  placed  on  the  roll  of  ownership,  and  because  a  part  of  the 
description  required  to  be  given  could  not  be  made  to  apply  to  it. 
Storrie  v.  Houston  City  St.  Ry.  Co.,  46  S.  W.  796,  92  Tex.  129. 

§  1082.  Contractor  to  look  to  property  owner — Void  assess- 
ment. 

Where  a  city  contracts  for  paving,  limiting  its  liability  to  one- 
third  of  the  cost,  and  providing  that  the  contractors  were  to  look 
to  the  abutting  owners  for  the  balance,  an  assessment  by  the  city 
for  such  balance  is  void. 

The  levy  of  an  assessment  for  a  public  improvement  should  be 
made  at  the  time  of  the  contract,  and  based  on  estimates  of  the 
cost  of  the  work  in  front  of  each  abutting  lot. 

The  amount  assessed  against  each  abutting  lot  should  be  fixed 
by  the  amount  of  the  cost  of  the  work  in  front  of  each  lot.  City 
of  Dallas  v.  Emerson,  36  S.  W.  304. 


CHAPTER  LX. 


POLL  TAX— JURORS— QUALIFICATION  OF  VOTERS. 


1083.  Who  are  qualified  voters.  1100. 

1084.  Who  are  qualified  to  vote  in 

city,  town,  etc.,  election.  1101. 

1085.  Collection  of  poll  tax. 

1086.  What  poll  tax  receipt  must       1102. 

show — Candidate     can     not       1103. 
pay  poll  tax  for  another.  1104. 

1087.  Persons    exempt    from    pay- 
ment of  poll  tax  to  obtain       1105. 
certificate     of    exemption —       1106. 
Form  of.  1107. 

1088.  Persons  not  21  years  old  to       1108. 
get  certificate  of  exemption. 

1089.  When   one   swears   falsely—       1109. 
Duty  of  collector. 

1090.  Removing  from  one  precinct       1110. 
to  another  county, 

1091.  Removing  to  another  county.       1111. 

1092.  Collector  to  require  proof  of       1112. 
residence  and  of  statement 
—When. 

1093.  Tax  collector's  fees.  1113. 

1094.  Tax  collector  giving  receipt 

to  fictitious  persons.  1114. 

1095.  Tax  collector  giving  receipt       1115. 

to  wrong  person. 

1096.  Failing  to  return  tax  receipt       1116. 
to  owner. 

1097.  Selling  poll  tax  receipt.  1117. 

1098.  Exemption. 

1099.  Delinquent     may     be     com- 
pelled to  work  road. 


Manner   of   payment   as   to 
qualification  to  vote. 
Loaning  money  to  pay  poll 
tax. 

Equality  and  uniformity. 
Uniformity — Road  law. 
Statutory      provisions — Poll 
tax. 

Levy  to  pay  jurors. 
Qualification  of  juror. 
County  poll  tax. 
City  poll  tax  of  cities  of  10,- 
000  inhabitants  or  over. 
Must  pay  to  qualify  as  juror, 
if  challenged. 

Must    challenge    as    to    dis- 
qualification. 
Qualification — Poll  tax. 
Court  may  dispense  with  re- 
quirement   of    payment    of 
poll  tax — ^When. 
Who     are      disqualified — In 
general. 

Notice  of  election. 
Evidence  as  to  who  are  tax- 
payers. 

Not  necessary  that  taxpay- 
er's name  appear  on  roll. 
Must  be  taxpayer  in  school 
district. 


§  108S.     Who  are  qualified  voters. 

Every  male  person  subject  to  none  of  the  foregoing  disquali- 
fications who  shall  have  attained  the  age  of  twenty-one  years, 
and  who  shall  be  a  citizen  of  the  United  States,  and  who  shall 
have  resided  in  this  state  one  year  next  preceding  an  election, 
and  the  last  six  months  within  the  district  or  county  in  which  he 


684  Taxation  in  Texas. 

offers  to  vote,  shall  be  deemed  a  qualified  elector ;  and  every  male 
person  of  foreign  birth,  subject  to  none  of  the  foregoing  disqual- 
ifications, who  not  less  than  six  months  before  an  election  at 
which  he  offers  to  vote  shall  have  declared  his  intention  to  be- 
come a  citizen  of  the  United  States,  in  accordance  with  the  fed- 
eral naturalization  laws,  and  shall  have  resided  in  this  state  one 
year  next  preceding  such  election  and  the  last  six  months  in  the 
county  in  which  he  offers  to  vote,  shall  also  be  deemed  a  qualified 
elector;  and  all  electors  shall  vote  in  the  voting  precinct  of  their 
residence ;  provided,  that  electors  living  in  an  unorganized  county 
may  vote  at  any  election  precinct  in  the  county  to  which  such 
county  is  attached  for  judicial  purposes ;  and,  provided,  further, 
that  any  voter  who  is  subject  to  pay  a  poll  tax  under  the  laws  of 
the  state  of  Texas  shall  have  paid  said  tax  before  he  offers  to 
vote  at  any  election  in  this  state,  and  hold  a  receipt  showing  the 
payment  of  his  poll  tax  before  the  first  day  of  February  next  pre- 
ceding such  election.  Or  if  said  voter  shall  have  lost  or  mis- 
placed said  tax  receipt  he  shall  be  entitled  to  vote  upon  making 
affidavit  before  any  officer  authorized  to  administer  oaths,  that 
such  tax  was  actually  paid  by  him  and  that  said  receipt  has  been 
lost.  Such  affidavit  shall  be  made  in  writing  and  left  with  the 
judge  of  the  election ;  provided,  further,  that  at  any  election  held 
only  in  a  subdivision  of  a  county  for  the  purpose  of  determining 
any  local  question  or  proposition  affecting  only  such  subdivision 
of  the  county,  then  in  addition  to  the  foregoing  qualifications  the 
voter  must  have  resided  within  said  subdivision  of  the  county  for 
six  months  next  preceding  such  election.  Sec.  2,  p.  133,  Acts 
1903. 

§  1084,  Who  are  qualified  to  vote  in  city,  town,  etc.,  election. 
All  qualified  electors  of  this  state,  ^s  described  in  the  foregoing 
sections,  who  shall  have  resided  for  six  months  immediately  pre- 
ceding an  election  within  the  limits  of  any  city  or  corporate  town, 
shall  have  the  right  to  vote  for  mayor  and  all  other  elective  offi- 
cers ;  but  in  all  elections  to  determine  the  expenditure  of  money 
or  assumption  of  debt,  or  issuance  of  bonds,  only  those  shall  be 
qualified  to  vote  who  pay  taxes  on  property  in  such  city  or  incor- 
porated town ;  provided,  that  no  poll  tax  for  the  payment  of  debts 
thus  incurred  shall  be  levied  upon  the  persons  debarred  from  vot- 
ing in  relation  thereto.    Sec.  3,  p.  134,  Acts  1903. 


Poll  Tax — Jurors — Qualification  of  Voters.         685 

§  1085.     Collection  of  poll  tax. 

The  poll  tax  required  by  the  constitution  and  laws  in  force 
shall  be  collected  from  every  male  person  between  the  ages  of 
twenty-one  and  sixty  years  who  resides  within  this  state  on  the 
first  day  of  January  preceding  its  payment ;  Indians  not  taxed, 
persons  insane,  blind,  deaf  and  dumb,  and  those  who  have  lost 
a  hand  or  foot,  excepted,  which  tax  shall  be  collected,  and  ac- 
counted for  by  the  tax  collector  each  year,  and  appropriated  as 
prescribed  by  law.  Sec.  9,  p.  134,  Acts  1903. 
Poll  tax  may  be  paid,  when. 

The  poll  taxes  required  by  law  to  be  paid  may  be  paid  at  any 
time  between  the  first  of  October  and  the  first  day  of  February 
following,  and  the  citizen  shall  be  entitled  to  his  poll  tax  receipt, 
even  if  his  other  taxes  are  not  then  paid.  Sec.  12,  p.  135,  Acts 
1903. 

§  1086.  What  poll  tax  receipt  must  show — Candidate  can  not 
pay  poll  tax  for  another. 
Each  poll  tax  receipt  shall  bear  on  its  face  the  name  of  the 
party  for  whom  it  was  issued,  the  payment  of  the  tax,  the  resi- 
dence of  the  party,  his  age,  his  race,  the  length  of  time  he  has  re- 
sided in  Texas,  the  length  of  time  he  has  resided  in  the  county,  the 
voting  precinct  in  which  he  lives,  his  occupation,  if  he  lives  in 
an  incorporated  city  or  town,  the  ward  and  street  and  number 
of  his  residence,  and  the  length  of  time  he  has  resided  in  such 
city  or  town.  In  all  cases  where  the  voter  resides  in  a  city  of  ten 
thousand  inhabitants  or  more  the  tax  must  be  paid  in  person  by 
the  owner  of  the  receipt.  If  the  owner  does  not  reside  within  a 
city  of  ten  thousand  inhabitants  or  more,  his  poll  tax  must  either 
be  paid  by  him  in  person  or  by  some  one  by  him  duly  authorized 
in  writing  to  pay  the  same,  and  to  furnish  the  collector  the  in- 
formation necessary  to  fill  out  the  blanks  in  the  poll  tax  receipts. 
Where  the  poll  tax  is  paid  by  an  agent  the  collector  shall  retain 
on  file  the  written  authority  of  the  agent  and  shall  note  on  the 
receipt  and  on  all  duplicates  thereof  made  by  him  under  the  pro- 
visions of  this  act,  the  fact  that  the  same  was  paid  by  an  agent, 
and  the  name  of  such  agent.  But  in  no  event  shall  any  candidate 
for  office,  nor  any  one  who  is  actively  espousing  the  cause  of  any 
candidate  for  office,  be  allowed  to  pay  any  poll  tax  for  another, 
and  any  person  violating  any  of  the  provisions  of  this  section 


686  Taxation  in  Texas. 

shall  be  guilty  of  a  felony,  and  upon  conviction  shall  be  punished 
by  confinement  in  the  penitentiary  for  a  term  of  not  less  than  two 
nor  more  than  five  years.    Sec.  22,  p.  136,  Acts  1903. 

§  1087.     Persons  exempt  from  payment  of  poll  tax  to  obtain 
certificate  of  exemption — Form  of. 

Every  person  who  is  exempted  by  law  from  the  payment  of  a 
poll  tax  and  who  is  in  other  respects  a  qualified  voter,  who  resides 
in  any  city  of  ten  thousand  inhabitants  or  more,  shall,  before  the 
first  day  of  February  of  the  year  in  which  he  offers  to  vote,  obtain 
from  the  tax  collector  of  the  county  of  his  residence  a  certificate 
showing  his  exemption  from  the  payment  of  a  poll  tax.  Such  ex- 
empt person  shall,  on  oath,  state  his  name,  county  of  his  residence, 
occupation,  race,  age,  the  length  of  time  he  has  resided  in  Texas, 
the  length  of  time  he  has  resided  in  the  county,  the  length  of  time 
he  has  resided  in  the  city  and  the  ward  and  the  voting  precinct 
in  which  his  residence  is  located  and  the  ward  and  street  and  num- 
ber of  his  residence.  He  shall  also  state  the  grounds  on  which 
he  claimed  exemption  from  the  payment  of  a  poll  tax.  Such 
certificate  shall  be  executed  in  duplicate,  the  original  of  which 
shall  remain  in  the  poll  tax  book,  to  be  retained  by  the  collector 
in  his  office,  and  a  copy  shall  be  detached  and  delivered,  bearing 
its  proper  number,  to  the  citizen  in  person  to  serve  in  identifying 
him  in  voting.  Certificates  of  exemption  for  each  precinct  shall 
be  numbered  consecutively,  beginning  at  one.  They  shall  be  in 
the  following  form : 

Certificate  of  exemption  from  poll  tax. 

No 

State  of  Texas,  County  of 

I, Tax  Collector  for 

County,  Texas,  do  hereby  certify  that i 

personally  appeared  before  me  on  the A.  D., 

,  and,  being  sworn,  says  his  name  is 

;  that  his  occupation  is ; 

that  he  has  resided  in  Texas  for years ;  in 

.- County  for  and  in  the 

city  of  for ; 

that  he  now  resides  in  Precinct  No ,  in  Ward  No. 

on Street,  and  in  house  No, 


Poll  Tax — Jurors — Qualification  of  Voters.         687 

,._. ;  that  he  is  exempt  from  the  payment  of  a 

poll  tax  by  reason  of ;  that  he  is  a  quali- 
fied voter  under  the  constitution  and  laws  of  Texas. 

Signed 

(SEAL)        Tax  Collector County,  Texas. 

Sec.  25,  p.  137,  Acts  1903. 

§  1088.     Persons  not  21  years  old  to  get  certificate  of  exemp- 
tion, when. 

Every  person  residing  in  a  city  of  ten  thousand  inhabitants  or 
more,  not  twenty-one  years  old  until  after  the  first  day  of  Febru- 
ary, but  who  will  be  twenty-one  years  old  before  the  next  gen- 
eral or  special  election  for  that  year  shall,  before  the  first  day  of 
February  of  the  year  in  which  he  first  ofifers  to  vote,  procure  such 
certificate  of  exemption  which  shall  specify  the  day  in  the  current 
year  when  he  shall  reach  the  age  of  twenty-one  years.  Sec.  26, 
p.  138,  Acts  1903. 

§  1089.     When  one  svs^ears  falsely,  duty  of  collector. 

Whenever  the  county  collector  shall  have  reason  to  believe  that 
the  citizen  who  has  paid  his  poll  tax  or  received  his  certificate 
of  exemption  has  sworn  falsely  in  obtaining  the  same,  he  shall 
report  the  facts  to  the  next  grand  jury  organized  in  the  county. 
Sec.  27,  p.  138,  Acts  1903. 

§  1090.     Removing  from  one  precinct  to  another  in  county. 

If  a  citizen,  after  receiving  his  poll  tax  receipt  or  certificate 
of  exemption,  removes  to  another  precinct  in  the  same  county 
before  the  next  succeeding  election,  he  may  vote  at  any  general 
election  in  the  precinct  of  his  new  residence  by  presenting  his  poll 
tax  receipt  or  certificate  of  exemption  to  the  precinct  election 
judges,  or  by  making  due  affidavit.    Sec.  28,  p.  138,  Acts  1903. 

§  1091.     Removing  to  another  county. 

If  a  citizen,  after  receiving  his  poll  tax  receipt  or  certificate 
of  exemption,  removes  to  another  county  he  may  vote  at  an  elec- 
tion in  the  precinct  of  his  new  residence  in  such  other  county  by 
presenting  his  poll  tax  receipt  or  certificate  of  exemption  or  his 
written  affidavit  of  the  loss  of  his  poll  tax  receipt  to  the  precinct 
election  judges  of  election  that  he  is  the  identical  person  described 
in  such  poll  tax  receipt  or  exemption  certificate,  and  that  he  then 


688  "     Taxation  in  Texas. 

resides  in  the  precinct  where  he  offers  to  vote  and  has  resided  for 
the  last  six  months  in  the  district  or  county  in  which  he  offers  to 
vote;  but  he  shall  not  be  allowed  to  vote  for  county  or  precinct 
officers,  or  in  any  special  or  local  election  confined  to  the  limits 
of  such  precinct,  unless  he  shall  have  resided  for  the  last  six 
months  within  the  county  in  which  he  offers  to  vote.  Sec.  29, 
p.  138,  Acts  1903. 

§  1092.     Collector  to  require  proof  of  residence  and  of  state- 
ment— When. 

If  the  county  collector  does  not  personally  know  one  who  ap- 
plies to  pay  his  poll  tax  or  procure  his  certificate  of  exemption 
from  its  payment  as  being  a  resident  in  the  precinct  which  such 
person  claims  as  that  of  his  residence,  it  shall  be  the  duty  of  such 
collector  to  require  proof  of  such  residence,  and  if  he  has  reason 
to  believe  that  such  person  has  falsely  stated  his  age,  occupation, 
precinct  of  his  residence,  or  length  of  his  residence  in  the  state 
and  county,  he  shall  require  proof  of  such  statement,  and  if  on 
inquiry  he  is  satisfied  that  said  person  has  sworn  falsely,  he  shall 
make  a  memorandum  of  the  words  used  in  such  false  statement 
and  present  the  same  to  the  foreman  of  the  next  grand  jury. 
Sec.  30,  p.  139,  Acts  1903. 

§  1093.     Tax  colloctor's  fees. 

The  county  collector  shall  be  paid  for  making  out  each  certifi- 
cate of  exemption  and  each  poll  tax  receipt  contained  in  poll  tax 
book  No.  1  fifteen  cents ;  but  this  shall  include  duplicates  and 
copies  thereof  in  that  book,  and  in  the  book  filed  with  the  county 
judge,  and  all  in  the  poll  tax  rolls  of  receipts  and  certificates  of 
exemption  made  out  for  the  precincts ;  for  all  of  which  no  addi- 
tional sum  shall  be  paid.  Such  amount  shall  be  paid  by  the 
county  commissioners'  court  on  the  presentation  by  the  tax  col- 
lector of  an  itemized  statement,  sworn  to  by  him,  and  approved 
by  the  county  judge.  The  compensation  allowed  the  collector 
under  this  section  shall  be  fees  ex  officio,  and  shall  not  be  com- 
puted under  what  is  known  as  the  fee  bill.  Sec.  106,  p.  152, 
Acts  1903. 

§  1094.     Tax  collector  giving  receipt  to  fictitious  persons. 

Any  collector  of  taxes  who  shall  knowingly  and  willfully  issue 
and  deliver  a  poll  tax  receipt  or  certificates  of  exemption  to  a 


Poll  Tax — Jurors — Qualification  of  Voters.         689 

fictitious  person  shall  be  punished  by  confinement  in  the  state 
penitentiary  not  less  than  three  nor  more  than  five  years.  Sec. 
124,  p.  155,  Acts  1903. 

§  1095.     Tax  collector  giving  receipt  to  wrong  person. 

Any  collector  of  taxes,  or  clerk  in  his  ofiice,  who  shall  deliver 
any  poll  tax  receipt  or  certificate  of  exemption  to  any  other  per- 
son than  to  the  citizen  whose  name  is  written  thereon  and  who 
is  entitled  thereto,  is  guilty  of  a  misdemeanor.  Sec.  125,  p.  155, 
Acts  1903. 

§  1096.     Failing  to  return  tax  receipt  to  owner. 

Any  one  to  whom  a  tax  receipt  or  certificate  of  exemption  may 
be  entrusted  for  safe  keeping,  who  fails  to  return  the  same  to  the 
owner  thereof  at  least  three  days  before  primary  election  day  or 
primary  convention  day,  and  three  days  before  any  general  elec- 
tion day,  shall  be  guilty  of  a  misdemeanor ;  provided,  that  if  the 
party  so  entrusted  is  unable  to  find  the  citizen  who  gave  it  to 
him,  he  may  evade  the  penalty  of  this  section  by  proving  that  he 
delivered  it  three  days  before  such  election  day  to  the  county  col- 
lector of  taxes  of  the  county  to  be  delivered  to  the  owner.  Sec. 
126,  p.  155,  Acts  1903. 

§  1097.     Selling  poll  tax  receipt. 

Any  person  who  shall  sell,  pledge,  loan  or  deposit  his  poll  tax 
receipt  or  certificate  of  redemption  for  money  or  any  other  thing 
of  value,  shall  be  deemed  guilty  of  a  misdemeanor,  and  the  per- 
son who  purchases,  borrows  or  obtains  possession  of  the  same  by 
way  of  pledge  or  loan,  is  guilty  of  a  misdemeanor.  Either  of  the 
parties  to  such  wrongful  act  may  be  compelled  to  appear  and 
testify  in  a  proceeding  against  the  other,  but  he  shall  not  there- 
after be  arrested  or  punished  for  his  participation  in  such  wrong- 
ful act.    Sec.  127,  p.  155,  Acts  1903. 

§  1098.     Exemption. 

The  law  exempting  those  from  payment  of  a  poll  tax  who  have 
lost  a  hand  or  foot  does  not  exempt  one  who  has  lost  part  of  his 
fingers  or  whose  foot  is  useless.    Bighorn  v.  Cluhh,  95  S.  W.  675, 
42  Tex.  Civ.  App.  312. 
Failure  to  pay  no  disqualification  for  service  on  grand  jury. 

Under  the  express  provision  of  Acts  29th  Leg.,  p.  207,  Chap. 

44 


690  Taxation  in  Texas. 

107,  amending  Rev.  St.  1895,  Art.  3139,  failure  to  pay  the  poll  tax 
as  required  by  law  does  not  disqualify  a  citizen  for  service  on  the 
grand  jury.    King  v.  State,  100  S.  W.  387. 

§  1099.     Delinquent  may  be  compelled  to  work  road. 

Const.,  Art.  3,  Sec.  56,  prohibits  the  passage  of  special  laws, 
but  Article  8,  Section  9,  as  amended  in  1890,  provides  that  the 
legislature  may  pass  local  laws  for  the  maintenance  of  public 
roads  and  highways.  Held,  that  Acts  29th  Leg.  1905,  p.  262, 
Chap.  30,  applicable  specially  to  Ellis  County,  and  requiring  de- 
linquent poll  tax  payers  to  work  the  roads  extra  time  or  pay  a 
certain  sum  in  lieu  thereof,  is  valid.  Young  v.  State,  102  S.  W. 
117,  51  Tex.  Crim,  App.  Z66. 

§  1100.     Manner  of  payment  as  to  qualification  to  vote. 

The  constitutional  right  of  suffrage  does  not  depend  upon  the 
payment  by  the  voter  of  his  poll  tax  "in  person,"  all  that  is  re- 
quired being  that  he  should  pay  his  poll  tax  on  or  before  a  stip- 
ulated day,  and  hence,  though  the  statute  relating  to  the  payment 
of  poll  taxes  as  a  condition  to  the  right  of  suffrage  directs  the 
voter  to  pay  the  tax  in  person  or  give  a  written  order  therefor, 
a  voter  would  not  be  deprived  of  his  right  of  suffrage  by  reason 
of  the  payment  of  his  tax  by  another  person  without  written  or- 
der, where  the  receipt  obtained  by  him  from  the  tax  collector  was 
regular  upon  its  face,  and  where  the  statute  did  not  expressly 
provide  that  a  failure  to  obtain  his  receipt  in  the  manner  directed 
by  the  statute  would  disfranchise  the  voter.  Wallis  v.  Williams, 
llOS.  W.  785. 

§  1101.     Loaning  money  to  pay  poll  tax. 

Const.,  Art.  6,  Sec.  1,  provides  the  qualifications  of  electors,  one 
of  which  requires  that  he  shall  have  paid  his  poll  tax  before  the 
first  day  of  February  next  preceding  the  election  at  which  he 
oflfers  to  vote.  Held,  that  Acts  1905  (Laws  1905,  p.  561,  Chap. 
11),  Sec.  170,  providing  that  a  person  who  loans  money  to  an- 
other knowingly,  to  be  used  for  paying  the  latter's  poll  tax,  is 
guilty  of  a  misdemeanor,  is  not  unconstitutional  as  unduly  re- 
stricting the  right  of  suffrage,  but  is  valid,  under  Const.,  Art.  6, 
Sec.  4,  authorizing  the  legislature  to  make  regulations  to  detect 
and  punish  fraud  and  preserve  the  purity  of  the  ballot. 

Acts  1905  (Laws  1905,  p.  561,  Chap.  11),  Sec.  170,  prohibiting 


Poll  Tax — ^Jurors — Qualification  of  Voters.         691 

the  lending  of  money  knowingly  for  the  payment  of  poll  tax,  in 
ord^r  to  qualify  the  borrower  to  vote,  is  not  unconstitutional  as 
a  deprivation  of  rights  without  due  process  of  law.  Solon  v. 
State,  114  S.  W.  349,  54  Tex.  Crim.  App.  261. 

§  1102.     Equality  and  uniformity. 

Rev.  St.  1895,  Art.  5048,  provides  for  the  levy  of  poll  taxes  on 
every  male  person  between  21  and  60  residing  in  the  state  on 
January  1st  of  each  year,  except  Indians,  insane  persons,  the 
blind,  deaf,  and  dumb,  and  those  who  have  lost  one  hand  or  foot. 
Held,  that  such  section  provided  a  proper  classification,  and  was 
therefore  not  unconstitutional  for  inequality  and  nonuniformity. 
Solon  V.  State,  114  S.  W.  349,  54  Tex.  Crim.  App.  261. 

§  1103.     Uniformity — Road  law. 

Sayles'  Ann.  Civ.  St.  1897,  Art.  5048,  requiring  that  every 
male  between  the  ages  of  21  and  60  years,  with  certain  excep- 
tions, shall  pay  a  poll  tax,  not  being  violative  of  Const.,  Art.  8, 
Sec.  1,  requiring  taxation  to  be  equal  and  uniform,  the  classifi- 
cation being  uniform  and  resting  on  a  substantial  basis  and 
reason,  Sp.  Laws  1897,  p.  155,  Chap.  110,  Sec.  15,  amended  by 
Sp.  Laws  1905,  p.  263,  Chap.  30,  Sec.  15,  providing  that  any 
person  in  the  county  subject  to  payment  of  a  poll  tax  who  shall 
fail  to  pay  it  before  a  certain  time  shall  be  subject  to  road  duty 
for  a  period  of  three  days  during  the  year,  etc.,  is  not  violative  of 
the  section  of  the  constitution.  Bhiitt  v.  State,  121  S.  W.  168. 
§  1104.     Statutory  provisions — Poll  tax. 

There  shall  be  levied  and  collected  from  every  male  person  be- 
tween the  ages  of  twenty-one  and  sixty  years,  resident  within  this 
state,  on  the  first  day  of  January  of  each  year  (Indians  not  taxed, 
and  persons  insane,  blind,  deaf  and  dumb  or  tho§e  who  have  lost 
one  hand  or  foot,  excepted),  an  annual  poll  tax  of  one  dollar  and 
fifty  cents,  one  dollar  for  the  benefit  of  free  schools,  and  fifty 
cents  for  general  revenue  purposes ;  provided,  that  no  county  shall 
levy  more  than  twenty-five  cents  poll  tax  for  county  purposes. 
(Acts  1882,  p.  18.)     Sayles  R.  S.,  Art.  5048. 

§  1105.     Levy  to  pay  jurors. 

Section  1.  Be  it  enacted  by  the  legislature  of  the  state  of  Tex- 
as: That  Article  1538,  Title  XXXII,  Chapter  2  of  the  Revised 
Civil  Statutes  of  the  State  of  Texas,  be  amended  so  as  to  here- 
after read  as  follows: 


692  '  Taxation  in  Texas. 

Article  1538.  Said  court  shall  have  the  power  to  levy  and  col- 
lect a  tax  for  county  purposes  not  to  exceed  twenty-five  cents  on 
the  one  hundred  dollars  valuation,  and  a  tax  not  to  exceed  fifteen 
cents  on  the  one  hundred  dollars  valuation  to  supplement  the  jury 
fund  of  the  county,  and  not  to  exceed  fifteen  cents  for  roads  and 
bridges  on  the  one  hundred  dollars  valuation,  except  for  the  pay- 
ment of  debts  incurred  prior  to  the  adoption  of  the  amendment 
to  the  constitution  September  25,  A.  D.  1883 ;  and  for  the  erec- 
tion of  public  buildings,  streets,  sewers,  water  works  and  other 
permanent  improvements,  not  to  exceed  twenty-five  cents  on  the 
one  hundred  dollars  valuation  in  any  one  year,  and  except  as  in 
the  constitution  otherwise  provided ;  provided  however,  the  court 
may  levy  an  additional  tax  for  road  purposes  not  to  exceed  fif- 
teen cents  on  the  one  hundred  dollars  valuation  of  the  property 
subject  to  taxation  under  the  limitations  and  in  the  manner  pro- 
vided for  in  Article  8,  Section  9,  of  the  constitution,  and  in  pur- 
suance of  the  laws  relating  thereto.    Acts  30th  Leg.,  pp.  39  and  40. 

§  1106.     Qualification  of  juror. 

Revised  Statute  1895,  Art.  3139,  provides  that  no  person  shall 
be  qualified  to  serve  as  a  juror  unless  he  is  a  citizen  and  a  quali- 
fied voter  of  the  county,  but  that  whenever  it  shall  be  "made  to 
appear"  to  the  court  that  the  requisite  number  of  jurors  who  have 
paid  their  poll  tax  cannot  be  found  within  the  county  the  court 
may  dispense  with  such  requirement ;  held,  that  such  section  did 
not  authorize  the  court,  in  its  discretion,  to  dispense  with  the 
tax  requirement  on  the  mere  belief  that  facts  existed  which 
would  make  it  improbable  that  qualified  jurors  could  be  found 
in  the  county  to  run  all  the  courts  of  the  county  for  a  year,  but 
only  authorized  such  suspension  in  a  particular  case,  when  it  was 
"made  to  appear"  by  evidence  that  sufficient  qualified  jurors  could 
not  be  found  to  try  such  case.  San  Antonio  &  A.  P.  R.  R.  Co.  v. 
Lester,  89  S.  W.  752,  99  Tex.  214. 

§  1 107.     County  poll  tax. 

A  county  poll  tax  levied  by  the  act  of  the  Legislature  does 
not  require  an  order  of  the  county  court  levying  it  to  authorize  its 
collection.    Labadie  v.  Dean,  47  Tex.  101. 

§  1108.     City  poll  tax  of  cities  of  10,000  inhabitants  or  over. 

The  city  council  shall  have  power  to  levy  and  collect  an  annual 
poll  tax,  not  to  exceed  one  dollar,  of  every  male  inhabitant  of 


Poll  Tax — ^Jurors — Qualification  of  Voters.         693 

said  city  over  the  age  of  twenty-one  years  (idiots  and  lunatics 
excepted),  who  is  a  resident  thereof  at  the  time  of  such  annual 
assessment.    Acts  1875,  p.  256,  Sec.  83. 

(1)  A  poll  tax  may  be  collected  when  authorized  by  an  or- 
dinance under  this  article.  Perry  v.  City  of  Rockdale,  62  Tex. 
451 ;  Sayles'  R.  S.,  Art.  489. 

§  1109.     Must  pay  to  qualify  as  juror,  if  challenged. 

"Under  the  recent  constitutional  amendment  known  as  the 
'Poll  Tax  Amendment,'  making  the  payment  of  poll  tax  before 
the  1st  of  February  of  each  year  a  prerequisite  to  the  right  to 
vote,  and  Code  Crim.  Proc,  Art.  67 Z,  providing  that  one  not  a 
qualified  voter  is  subject  to  challenge  as  a  juror  in  a  criminal 
case,  it  is  error  to  overrule  a  challenge  to  a  juror  who  has  not 
paid  his  poll  tax  for  the  preceding  year."  Carter  v.  State,  76  S. 
W.  437,  45  Tex.  Crim.  App.  430. 

§  1110.     Must  challenge  as  to  disqualification. 

Under  the  statutes  and  constitution  of  this  state,  the  fact  that 
a  juror  has  not  paid  his  poll  tax  goes  to  his  qualification.  How- 
ever, as  we  understand  the  statute,  this  is  made  a  ground  of  chal- 
lenge, and  not  an  absolute  disqualification  of  the  juror.  Art, 
676,  Code  Crim.  Proc.  1895,  says  that  no  one  who  is  subject  to 
the  third,  fourth  or  fifth  clauses  of  challenge,  under  Art.  673, 
shall  be  impaneled  as  a  juror.  The  poll  tax  requirement  is 
subd.  1  of  said  article,  and  so  is  not  included  in  either  of  said 
subdivisions  which  absolutely  disqualify  the  juror.  And  this  arti- 
cle, as  amended  by  the  last  Legislature,  which  passed  an  act  with 
reference  to  juries  under  the  amendment  of  Art.  6,  Sec.  2,  of  the 
Constitution,  adopted  by  the  people  in  1901,  leaves  the  subject 
of  challenging  a  juror  on  the  ground  that  he  was  not  a  legal 
voter  exactly  as  it  was  before.  See  amendment  to  the  Consti- 
tution (Gen.  Laws  27th  Leg.,  p.  322),  and  amendment  relating 
to  qualification  of  jurors  (Acts  Special  Sess.  27th  Leg.  1903,  p. 
15).      Poole  V.  State,  76  S.  W.  567,  45  Tex.  Crim.  App.  348. 

§1111.     Qualification — Poll  tax. 

"Under  Rev.  Stat.  1895,  Art.  3139,  as  amended  by  the  Acts  of 
the  28th  Legislature,  Special  Session,  p.  16,  Ch.  9,  providing  that 
no  person  shall  be  qualified  to  serve  as  a  juror  unless  he  is  quali- 
fied to  vote,  but,  when  it  shall  be  made  to  appear  that  the  requisite 


694  Taxation  in  Texas. 

number  of  jurors  who  have  paid  their  poll  taxes  cannot  be  found, 
the  court  may  dispense  with  that  requirement,  a  defendant  has  the 
right  to  except  to  a  juror  who  has  not  paid  his  poll  tax,  and,  if  it 
is  shown  that  there  are  sufificient  qualified  jurors  to  try  the  case, 
he  is  entitled  to  qualified  jurors  only,  and  so,  where  the  defendant 
showed  that  there  were  3,000  qualified  poll  tax  paying  jurors  in 
the  county,  the  court  could  not  dispense  with  that  qualification." 
Taylor  v.  State,  81  S.  W.  R.  933,  47  Tex.  Crim.  App.  101. 

§  1112.  Court  may  dispense  with' requirement  of  payment  of 
pyoll  tax  when. 
"Under  the  express  provisions  of  Laws  1903,  First  Called 
Session,  p.  15,  Ch.  9,  the  court  may  dispense  with  the  requirement 
of  the  payment  of  poll  taxes  as  a  qualification  for  service  as  a 
juror,  whenever  it  is  made  to  appear  that  the  requisite  number 
of  jurors  who  have  paid  their  poll  tax  cannot  be  found  within 
the  county."  San  Antonio  &  A.  P.  Ry.  Co.  v.  Lester,  84  S.  W. 
401. 

§  1113.     Who  are  disqualified  in  general. 

No  person  shall  be  qualified  to  serve  as  a  juror  who  does  not 
possess  the  following  qualifications  : 

He  must  be  a  citizen  of  the  State  and  of  the  county  in  which  he 
is  to  serve,  and  qualified  under  the  Constitution  and  laws  to  vote 
in  said  county;  but  whenever  it  shall  be  made  to  appear  to  the 
court  that  the  requisite  number  of  jurors  who  have  paid  their 
poll  taxes  can  not  be  found  within  the  county,  the  court  may  dis- 
pense with  the  requirement  of  the  payment  of  poll  taxes  as  a 
qualification  for  service  as  a  juror.  Acts  1903,  First  Called  Sess., 
p.  15. 

§  1114.     Notice  of  election. 

2  Sayles'  Civil  Stats.,  Art.  3733,  in  providing  for  a  special 
election  to  vote  taxes  for  the  school  district,  states  that  "the  com- 
missioners' court  shall  order  the  sheriff  to  give  notice  of  such  elec- 
tion by  posting  three  notices  in  the  district  for  three  weeks 
before  the  election,  and  the  sheriff  shall  obey  such  order."  Held, 
that  where  the  notices,  though  posted  by  the  sheriff,  are  signed  by 
the  county  judge,  and  there  is  nothing  on  the  face  thereof  from 
which  the  electors  could  infer  that  either  the  sheriff  or  the  com- 


Poll  Tax — Jurors — Qualification  of  Voters.         695 

missioners'  court  had  ariything  to  do  in  summoning  them  to  vote 
at  the  election  such  election  is  illegally  called  and  the  tax  voted 
thereat  is  void.  Swenson  v.  McLaren,  21  S.  W.  300,  2  Tex.  Civ. 
App.  331. 

§  1115.     Evidence  as  to  who  are  taxpayers. 

"If  it  is  sought  to  invalidate  a  tax  election  on  the  ground  that 
a  portion  of  the  signers  to  the  petition  for  the  election  were  not 
qualified,  property  holding,  tax-paying  voters  of  the  district,  the 
jury  should  not  be  compelled  to  examine  the  assessment  roll  to 
see  if  the  names  appear  thereon,  but  the  custodian  of  the  roll 
should  make  a  careful  examination,  and  then  testify  whether  it 
contains  such  names."  Smenson  v.  McLaren,  21  S.  W.  300,  2 
Tex.  Civ.  App.  331. 

§  1116.     Not  necessary  that  taxpayer's  name  appear  on  roll. 

"Under  Sayles'  Civ.  Stats.,  Art.  3733,  providing  for  the  order- 
ing of  an  election  to  determine  whether  a  school  tax  shall  be 
levied  on  the  petition  of  twenty  property  holding,  tax-paying 
voters  residing  in  the  district,  it  is  not  necessary  that  the  names 
of  such  petitioners  appear  on  the  last  assessment  roll  of  the 
county,  though  Art.  3733b  declares  this  to  be  one  of  the  qualifica- 
tions of  voters  at  the  election."  Rhomberg  v.  McLaren,  21  S.  W. 
571,  2  Tex.  Civ.  App.  391. 

§  1117.     Must  be  taxpayer  in  school  district. 

"Since,  to  be  qualified  to  vote  at  an  election  held  to  determine 
whether  a  special  school  tax  shall  be  levied,  the  person  must  not 
only  be  qualified  to  vote  in  general  elections,  but  be  a  taxpayer 
within  the  district,  a  petition  alleging  that  in  such  an  election  no 
one  was  allowed  to  vote  except  qualified  voters  and  those  who 
in  addition  to  such  qualification,  were  property  taxpayers,  is  in- 
sufficient, as  it  does  not  allege  that  they  were  taxpayers  within 
the  district."  Miller  v.  Crawford  Independent  School  Dist.,  63 
S.  W.  894,  26  Tex.  Civ.  App.  495. 


INDEX. 


ADVERSE  POSSESSION. 
Sec. 

864.  Statutory  provision.  * 

865.  Tax  deed. 

866.  Must  pay  taxes. 

867.  Payment  of  taxes  not  possession. 

868.  Presumptive  possession. 

869.  Payment  of  taxes  under  forfeited  survey. 

870.  Pleading  possession. 

871.  Limitation. 

872.  Possession  under  void  deed  extends  to  wliat. 

873.  Payment  of  taxes  by  third  person. 

874.  Void  deed  will  not  support  limitation. 

875.  Tract  inclosed  with  others  and  use  of  part. 

876.  Can  not  establish  title  by  payment  of  taxes,  when. 

877.  Invalid  tax  deed  will  not  support  limitation. 

878.  Must  prove  payment  of  taxes  on  all  of  tract  claimed. 

879.  Tax  roll  evidence  of  payment. 

880.  Tax  deed  not  good  under  three  years  statutes,  when. 

881.  Tax  deed  must  describe  property. 

882.  Redemption    period,    not    necessary    to    re-register    after    such 

period. 

883.  In  whose  name  to  be  assessed. 

884.  Description  of  taxes — Failure  to  pay  taxes.  ' 

885.  Only  title  of  owner  at  time  of  sale  passed. 

886.  Payment  shown  without  evidence  of  assessment. 

887.  Tax  deed  will  not  support  limitation,  when. 

888.  Not  entitled  to  hold  against  purchaser  at  tax  sale,  when. 

889.  Not  interrupted  by  tax  suit. 

890.  Description  in  assessment. 

891.  Land  must  be  defined. 

892.  Must  pay  taxes  to  acquire  title  under  five-years  statute  of  lim- 

itation. 

893.  Presumption  of  for  whom  paid.  , 

894.  Voidable  judgment  to  show  three-years  limitation. 

895.  Tenant  and  landlord. 

896.  Payment  of  taxes  no  proof  of  possession. 

897.  Payment  of  taxes  on  land  different  from  location  in  deed. 

898.  Failure  to  pay  taxes  weakens  claim  on  land. 

899.  Possession  not  adverse  during  time  allowed  for  redemption. 


Index.  697 

Sec. 

900.  Undivided  interest. 

901.  Tax  deed  will  support  statute  of  limitation. 

ASSESSMENT. 
Sec. 

73.  Annual  assessment  a  lien. 

74.  Assessment  necessary. 

75.  Proceedings  where  lands  can  not  be  easily  described. 

76.  What  is  an  assessment? 

77.  Place  of  assessment. 

78.  Taxes  not  to  be  paid  twice,  etc. 

79.  Leasehold  interests  in  public  lands. 

80.  Should  use  formis  of  comptroller. 

81.  Irregularities  free  from  fraud. 

82.  Manner  of  making  out  tax  lists  directory. 

83.  Tract  or  lot. 

84.  United  States  paper  money  taxable. 

85.  Assessed  as  money  on  hand. 

86.  Taxpayer  to  make  oath. 

87.  When  assessments  to  be  made.    • 

88.  Irregular  assessments  valid. 

89.  Mistake  in  name  of  owner. 

90.  Failure  to  list  for  taxation. 

91.  Collector's  roll  not  part  of  assessment. 

92.  Assessment  not  on  proper  roll. 

93.  No  presumption  as  to  regularity  after  lapse  of  time. 

94.  Void  asisessment — Remedies. 

95.  Property  added  to  list  valid.  " 

96.  Credits  assessed  where. 

97.  Showing  rate  of  assessment  by  custom. 

98.  Refused  to  render  list. 

99.  Tax  rolls — When  admitted  in  evidence. 
100.  Double  assessment. 

ASSESSMENT— DESCRIPTION   IN. 
Sec. 

154.  Sufficiency  of  description. 

(a)  Sufficient  against  owner  good  as  to  purchaser. 

155.  Description — Literal  compliance  not  required. 

156.  Sufficiency  of  description  in  rolls  no  variance  where  full  descrip- 

tion is  given  in  petition. 

^157.  Rigid  description  not  required  where  owner  assesses. 

158.  Description — Failure  to  give  abstract  and  survey  number. 

159.  Description — Object  and  purpose  of. 

160.  Omission  of  certificate  or  survey  number. 

161.  Description,  sufficiency  of — ^Parol  evidence  to  show  property  ad- 

missible. 


698  Taxation  in  Texas. 

ASSESSMENT  OF  RENDERED  PROPERTY. 

Sec. 

101.  When  property  to  be  rendered. 

102.  How  to  be  rendered. 

103.  Where  to  be  rendered. 

104.  To  be  rendered  in  but  one  county. 

105.  Live  stock,  when  and  how  rendered. 

106.  Vessels,  where  listed. 

107.  Railroads,  telegraphs,  etc. 

108.  Listing  for  others. 

109.  Shall  list  under  oath. 

110.  The  statement  and  its  requisites. 

111.  Certain  credits  and  stocks  not  to  be  listed. 

112.  Rendition  of  real  estate. 

113.  Assessment  of  personal  property  by  rendition  by  banker,  broker, 

etc. 

114.  No  deductions  in  certain  cases. 

115.  Assessments  and  collections  of  corporate  property. 

116.  Assessments  in  owner's  name. 

117.  Relating  to  the  list  of  property  given  in  by  property  owners. 

118.  Act  of  May  16th,  1907,  relating  to  the  listing  and  valuation  of 

property. 

ASSESSMENT  OF  UNRENDERED  PROPERTY. 

Sec. 

119.  Unrendered,  how  rendered. 

120.  Back  taxes  on  unrendered  lands. 

121.  Assessor  to  make  rolls  of  unrendered  property. 

122.  Tax  sale  of  unrendered  property — How  it  should  be  assessed. 

123.  Unrendered  property  shall  be  ascertained,  etc.,  by  assessor. 

124.  Unrendered  property  list  in  cities  to  be  examined  by  board. 

125.  Assessment  of  property  not  assessed  for  taxes. 

ASSESSOR   AND   HIS   DUTIES. 

Sec. 

162.  Assessor — Election  of. 

163.  Duty  of  assessor  and  collector  of  cities  to  make  lists  of  prop- 

erty, etc. 

164.  Unrendered  property  in  cities  shall  be  ascertained,  etc.,  by  city 

assessor  and  collector. 

165.  Election  and  term  of  assessor. 

166.  Vacancies,  how  filled. 

167.  Oath  and  bond. 

168.  Purview  of  the  bond. 

169.  New  bond. 

170.  Bond  for  county  taxes. 

171.  May  appoint  deputies. 


Index.  699 

Sec. 

172.  May  administer  oaths. 

173.  Tlie  oath. 

174.  Where  and  how  the  list  may  be  made. 

175.  Penalty  for  failure  to  attest  oath,  etc. 

176.  Fraud  upon  the  public  revenue. 

177.  Taxpayer  to  make  oath. 

178.  When  assessments  to  be  made. 

179.  Irregular  assessments  valid.  , 

180.  If  taxpayer  is  absent,  etc. 

181.  Or  refuses  to  ist. 

182.  Duty  of  assessor. 

183.  Abstracts  to  be  furnished. 

184.  Books  to  be  furnished. 

185.  How  to  be  filled. 

186.  Blocks  and  lots  in  cities. 

187.  Duties  of  assessor  as  to  same. 

188.  To  be  kept  in  office. 

189.  Lands  not  on  abstract. 

190.  Certificate  from  board  of  equalization. 

191.  Substitute  to  be  employed. 

192.  Unorganized  counties. 

193.  Manner  and  form  of  assessing. 

194.  Assessment  of  real  estate  for  all  previous  years. 

195.  Assessor  to  follow  instructions. 

196.  Duty  to  properly  assess. 

197.  Assessor  to  furnish  list  of  delinquents. 

198.  Assessor  to  furnish  list  to  board  of  equalization. 
199'.  Assessor  shall  make  out  rolls  in  triplicate. 

200.  Also  rolls  of  unrendered  property. 

201.  Assessor  to  add  up  columns. 

202.  Return  and  oaths. 

203.  All  lists  and  statements  to  be  filed  with  the  county  clerk. 

204.  Rolls  to  be  distributed. 

205.  Compensation  of  assessor  of  state  and  county  taxes. 

206.  How  paid  by  the  state. 

207.  By  the  county. 

208.  Penalties  for  neglect  of  duty. 

209.  Assessor  of  taxes. 

210.  Fees  less  than  maximum — Statements  of  fees  collected — Excess 

to  be  paid  into  county  treasury. 

211.  Deputies  and  assistants — Appointment  and  compensation. 

212.  Penalty  for  failure  to  charge  up  fees  for  remission  of  fees,  etc. 

213.  Payment  of  ex  officio  services. 

214.  Officers  to  keep  a  correct  statement — Accounts  to  be  examined 

by  grand  jury. 

215.  Certain  officers  not  required  to  make  a  report  or  keep  a  state- 

ment. 


700  Taxation  in  Texas. 

Sec, 

216.  Statement  of  tax  collector  and  assessor. 

217.  Fiscal  year — At  what  time  reports  must  be  made,  and  by  whom. 

218.  Commission  on  school  district  tax. 

219.  Compensation  for  funded  indebtedness. 

220.  Duty  of  assessor  as  to  unrendered  property. 

ATTORNEY. 

Sec. 

1054.  District  and  county  attorneys  and  attorneys  employed. 

1055.  Attorney  to  represent  the  state — Fees. 

1056.  Lots  separately  assessed  and  owned  by  one  person — One  tract 

as  to  costs. 

1057.  Attorney  general — Right  to  represent  state  in  tax  suits. 

1058.  Attorney's  fees. 

1059.  Salary  incident  to  office. 

1060.  Effect  of  want  of  authority  on  judgment. 

1061.  Right  of  city  to  employ  council. 

1062.  Attorney's  fees — When  not  authorized. 

1063.  Liable  for  reasonable  amount  for  services. 

1064.  Failure  to  appoint  attorney. 

1065.  County  attorney  may  purchase  land  sold  at  tax  sale. 

1066.  County  attorney  must  assist  in  collecting  taxes  on  contract. 

BANKS. 

Sec. 

662.  Sworn  statement  to  be  furnished  by  national  banks — Penalty. 

663.  Money  and  notes  defined. 

664.  Assessment  of  real  estate  by  banks. 

665.  Only  real  estate  on  national  banks  subject  to  taxation. 

666.  Share  of  banking  association  liable  for  taxes. 

667.  Liability  of  bank  stock. 

668.  National  bank  shares — Deducting  indebtedness. 

669.  National  bank. 

670.  What  is  subject  to  taxation. 

671.  Bank  deposits — How  taxable. 

672.  National  bank  stock. 

673.  Inequality  of  assessment  of  bank  stock. 

674.  Assessment  by  city  on  stock. 

675.  President  required  to  assess. 

676.  Deposits  to  be  deducted  as  debts. 

677.  Not  exejnpt,  when. 

BOARD  OF  APPRAISERS. 
Sec. 

221.  Board  of  equalization — Their  qualification  and  duties. 

222.  EJqualization  of  assessments. 


Index.  701 

I 

Sec. 

223.  Boards  may  equalize  without  complaint. 

224.  Assessor  to  submit  list  to  board  of  equalization. 

225.  Appointment  and  duties  of  board  of  equalization  in  cities   or 

towns. 

226.  Annual  meetings  of  said  board. 

227.  Shall  value  property. 

228.  Values  to  be  equalized  by  board. 

229.  Unrendered  property  list  to  be  examined  by  board. 

230.  Notice  to  property  owners. 

231.  Board  to  lower  values  when. 

232.  Approval  of  lists  and  rolls  by  board. 
^33.  Action  of  board  final. 

234.  Compensation  of  board. 

235.  Oath  to  be  taken. 

236.  Approval  of  board — SuflBlcient. 

237.  Excessive  assessment — Fraud — Remedy. 

238.  Determining  powers  of  board  and  assessor. 

239.  Deputy  assessor  sitting  as  member  of  board. 

240.  Fraud — Reduction — Failure  to  appear — Notice. 

241.  Appellate  jurisdiction  from  city  board  valid. 

242.  De  facto  officers. 

243.  No  power  to  add  property  to  list. 

244.  Excessive  assessment  from  fraudulent  motives. 

245.  County  commissioners  not  liable  in  civil  action. 

246.  "Valuation  must  first  be  made  by  assessor. 

247.  Owner  must  have  notice  of  increase  of  valuation. 

248.  List  must  be  presented  to  board. 

249.  Action  of  board  final. 

250.  Acts  of  two  members  valid. 

251.  Meeting  of  board  after  time. 

252.  Not  required  to  classify  property  on  minutes. 

253.  Valuation. 

254.  No  criterion  of  value  in  condemnation. 

255.  Const.,  Art.  8,  Sec.  18,  applies  to  state  and  county  taxes. 

256.  Board  of  appeals  not  necessary  where. 

BULK  ASSESSMENT. 
Sec. 

143.  Act  of  1897  power  to  correct  bulk  assessments. 

144.  Tract  or  lot  defined. 

145.  Where  two  lots  belong  to  one  owner  and  form  one  parcel  of 

land,  they  may  be  assessed  for  taxation  together. 

146.  If  two  lots  are  used  as  one  assessment  together  good. 

147.  Assessment  when  approved  by  taxpayer  is  binding,   although 

irregular. 

148.  Requisites  as  to  tax  roll,  do  not  apply  to  assessment. 


702  Taxation  in  Texas. 

Sec. 

149.  Lot  must   be   separately   assessed   except   when   rendered   by 

owner. 

150.  Contiguous  tracts  held  by  one  title. 

151.  Taxes  lien  on  each '  separate  tract  of  land — City  property  no 

exception. 

152.  Owner  estopped  where  his  rendition  is  adopted  on  unrendered 

roll. 

153.  Assessment  to  be  corrected — Bulk. 

CITIES  AND  TOWNS. 

Sec. 

738.  Cities  and  towns  having  a  population  of  10,000  or  less. 

739.  Cities  having  more  than  10,000  inhabitants. 

740.  Debts  incurred  prior  to  adoption  of  present  constitution. 

741.  Counties  and  cities  on  the  coast  of  the  Gulf  of  Mexico. 

742.  School  district. 

743.  Taxes  due  towns  and  cities. 

744.  Lands  in  cities  and  towns. 

745.  Power  of  city  council  to  regulate  tax  lists — ^Assessment  of  taxes, 

etc. 

746.  Duty  of  taxpayers  to  render  inventory  of  property,  etc. 

747.  Abstract  and  survey  not  necessary,  when. 

748.  May  prescribe  mode  of  assessment. 

749.  Burden  of  proof. 

750'.    Limitation  on  power  to  tax. 

751.  No  ordinances  necessary  to  empower  with  authority  to  sue. 

752.  Cities  incorporated  under  general  law  may  license  certain  oc- 

cupations. 

753.  May  license,  etc.,  peddlers,  theaters,  etc. 

754.  May  license,  etc.,  circuses,  etc. 

755.  May  license,  etc.,  hackmen  and   prescribe  their  compensation, 

etc. 

756.  May  license,  etc.,  billiard  tables,  etc. 

757.  May  authorize  proper  officer  to  grant  license,  etc. 

758.  May  tax  street  railways. 

759.  Power  over  finances  of  city. 

760.  City  bonds  shall  specify  what. 

761.  Bonds  form  taxation  and  may  be  used  to  pay  taxes. 

762.  Tax  laws  to  remain  in  force. 

763.  Laws  to  enforce  collection  continued  in  force,  and  all  defenses 

to  bonds  cut  off. 

764.  Tax  collector — Liability — Governor  to  appoint  when, 

765.  Gulf  cities  may  issue  bonds  for  harbors,  etc. 

766.  Tax  to  be  levied,  interest  paid  and  bonds  sold,  etc. 

767.  Ad  valorem  tax. 

768.  To  levy  and  collect  tax  and  issue  bonds  for  improvements, 

buildings,  etc. 


Index.  703 

Sec. 

769.  Cities  of  ten  thousand  inhabitants  and  over  to  levy  and  collect 

tax — ^Validating  act. 

770.  Debt  shall  not  be  created  unless  provision  be  made  to  pay  the 

same. 

771.  Power  of  city  council  to  provide  for  collection  of  taxes. 

772.  Taxes  for  payment  of  indebtedness. 

773.  Board  of  aldermen  may  levy  tax — How  much — (Cities  and  vil- 

lages). 

774.  Taxes — By  whom  collected — Sale  of  property  for. 

775.  Real  estate  may  be  redeemed. 

776.  When  purchaser  is  a  non-resident. 

777.  Where  property  is  liable  for  taxes  and  owner  is  unknown. 

778.  Incorporations  for  school  purposes. 

779.  Power  of  cities  in  general  to  levy  taxes. 

780.  Tax  can  be  collected  when  void  portion  ascertainable. 

781.  Duty  of  assessor  and  collector  in  regard  to  collection  of  taxes. 

782.  Property  of  taxpayer  shall  be  levied  and  sold  for  taxes,  when. 

783.  Assessor  and  collector  shall  make  deed  to  purchaser  to  property 

sold  for  taxes — Effect  of  deed. 

784.  Sale  may  take  place  at  another  time  than  that  first  advertised, 

when. 

785.  Property  shall  be  struck  off  to  city  when. 

786.  Levy  of  taxes. 

787.  Record  of  levy. 

788.  Resolution  sufficient  basis  for  suit,  when. 

789.  Right  to  sue. 

790.  Mandamus — Purpose  of  tax  may  be  shown. 

791.  Levy— Street. 

792.  Inquiry  into  legality  of  corporation  of  town. 

793.  Ordinance  providing  for  the  issuance  of  bonds — Sufficient,  when. 

794.  Cities  of  over  10,000  may  change  rules  of  evidence, 

795.  Can  not  raise  question  of  corporate  existence  in  tax  suits. 

796.  Re-incorporation  or  abolishing  municipality. 

797.  Rev.  Statutes  1895,  Art.  487. 

798.  Right  of  cities  to  sue  under  charter  provisions  not  taken  away 

by  general  law. 

799.  City  of  Houston. 

800.  Bonds  for  existing  debts. 

801.  Tax  on  bonds  sold  to  city. 

802.  Majority  of  aldermen  sufficient  to  pass  tax-levying  ordinance. 

803.  Interest. 

804.  Mandamus. 

805.  Ordinance  not  resolution,  when. 

806.  Sufficiency  of  levy. 

807.  Right  of  town  to  maintain  action. 


704  Taxation  in  Texas. 

Sec.  '  ..    ,    .,    r:r;|,-rj 

808.  Cities  and  towns  may  adopt  general  state  law  in  regard  to  col- 

lecting taxes. 

809.  De  facto  corporation. 

810.  Bawdy  house  license. 

811.  Galveston. 

812.  Cities  over  10,000  not  within  limit. 

813.  Tax  for  school  purposes  valid. 

814.  Implied  authority  to  levy  tax. 

815.  Limitations  of  power — Application  of  tax  fund. 

816.  Towns  which  mar  or  have  abolished  their  corporate  existences. 

817.  Collection  of  taxes  where  corporation  is  abolished. 

818.  Relating  to  issuance  of  bonds  and  levy  of  taxes. 

COURTS. 
Sec. 

313.  Jurisdiction  of  courts. 

314.  Limited  jurisdiction  of  court. 

315.  Jurisdiction  of  county  court  to  issue  injunction. 

316.  Foreclosing  of  lien  on  real  estate — Amount  does  not  control. 

DELINQUENT  TAX   ACT  OF   1905   PROVIDING   FOR  THE   ASSESS- 
MENT AND  COLLECTION  OF  TAXES  IN  CERTAIN  CASES. 
Sec. 

136.  Taxes — Providing  for  the  assessment  and  collection. 

137.  Acts  29th  Leg.,  Chap.  130,  Sec.  7,  valid. 

138.  Mandamus  to  turn  over  percentage  need  not  be  set  out  in  detail. 

139.  Tax  collector's  duties  in  regard  to  paying  percentage. 

140.  Adequate  remedy. 

141.  Parties — Joinder. 

142.  County  attorney  can  not  contract. 
142.     (a)  Who  may  be  employed  to  make. 

142.     (b)  Can  not  transfer  tax  as  compensation. 
142.     (c)   Compensation — Quantum  meruit. 

DISTRICT  AND  COUNTY  CLERK. 
Sec. 

1047.  Fees  under  delinquent  tax  act  of  the  district  clerV 

1048.  Delinquent  lists  to  be  recorded  by  county  clerk. 

1049.  Delinquent  Tax  Record. 

1050.  County  clerk  shall  furnish  copies,  etc. 

1051.  Fees  under  delinquent  tax  act. 

1052.  Not  entitled  to  fee  when  list  is  not  recorded. 

1053.  Entitled  to  fee  under  Act  1897. 


Index.  705 

DRAINAGE  TAX. 
Sec. 
930.    Acts  31st  Leg.,  showing  mode  of  levying  and  collecting. 

EFFECT  OF  REPEAL  OF  TAX  LAWS. 

Sec. 

858.  Whether  taxes  are  to  be  collected  by  law  enforced  at  the  time 

of  levy  and  if  repealed  and  when  by  subsequent  legislation. 

859.  City's  rights  under  repealed  charter. 

860.  Deed. 

861.  Retroactive  law  taking  away  any  right  unconstitutional., 

862.  Redemption. 

863.  Repeal  of  former  law. 

EVIDENCE. 
Sec. 

376.  Lists  and  books  prima  facie  evidence. 

377.  Lists — ^Assessment  rolls  or  books  prima  facie  evidence. 

378.  Inventories  as  evidence. 

379.  Plats  and  maps  as  evidence. 

380.  Copies  of  records  of  public  officers  and  courts  to  be  prima  facie. 

381.  Tax  deed  of  city  prima  facie  evidence. 

382.  Delinquent  tax  list. 

383.  Authority  to  make  sale  must  be  shown  before  tax  deed  can  be 

admissible  in  evidence. 

384.  Assessment  roll  not  admissible,  when. 

385.  Admissions — Offer  of  compromise. 

386.  Prima  facie  tax  rolls. 

387.  City  ordinance — Admissibility  of  pamphlet. 

388.  Sworn  pleadings  not  offered  by  general  denial — Proof. 

389.  Sufficiency. 

390.  Admission  in  record. 

391.  Burden  of  proof. 

392.  Tax  list  alone  not  prima  facie  evidence. 

393.  Tax  deed  not  evidence  of  title,  when. 

394.  Tax  deeds  and  rolls  not  evidence  of  levy. 

395.  Admission  in  pleadings. 

396.  To  show  valuation — Assessment. 

397.  Tax  deed  conclusive  as  to  facts  stated  therein. 

398.  Sale  for  larger  amount  void. 

399.  Admission  in  pleadings. 

400.  Presumption  of  legality  of  levy. 

401.  Not  necessary  to  show  title,  when. 

402.  Levy,  prima  facie  evidence  of  facts. 

403.  Deed  of  tax  collector  at  summary  sale  not  evidence  of  title, 

when. 

404.  Parol  testimony  where  tax  rolls  are  lost. 
45 


706  Taxation  in  Texas. 

Sec. 

405.  Admission. 

406.  Competency,  sufficiency  of  description. 

407.  List  alone  not  evidence. 

408.  In  prosecution  for  occupation  tax,  state  must  show  amount  of 

levy. 

409.  Tax  receipts  evidence  of  Rendition. 

410.  Assessment  lacking  affidavit  of  assessor  not  admissible. 

411.  Assessment  and  demand  must  be  shown. 

412.  Payment  of  taxes  as  evidence  of  partition. 

413.  Allowed  to  prove  notations  on  roll. 

414.  Copy  of  delinquent  tax  record  admissible. 

415.  Owner's  rendition  admissible  to  show  value  of  property  in  dam- 

age suit. 

416.  Payment  of  taxes  to  show  extent  of  claim. 

417.  Payment  of  city  tax  no  evidence  of  payment  of  state  and  county 

tax. 

418.  Tax  rolls. 

EXEMPTIONS. 
Sec. 

606.  Constitutional  provision. 

607.  1250.00  furniture  exempt. 

608.  Farm  products. 

609.  Property  exempt. 

610.  Act  1906. 

611.  Acts  of  30th  Leg.  exempting  certain  properties  from  taxation. 

612.  Legislature  may  release  when. 

613.  Private  schools — ^Buildings — What  included  in  the  terms. 

614.  City  council  may  provide  for  the  exemption  of  property  from 

taxation. 

615.  School  property— What  is  exclusive  use. 

616.  School  house  occupied  by  family  not  exempt. 

617.  Land  connected  with  boarding  school. 

618.  Aid  in  construction  of  railroad — Sale  of  same. 

619.  Leasehold  not  taxable  against  tenant,  when. 

620.  Timber  on  school  land  sold  not  exempt. 

621.  Church  publication  not  exempt. 

622.  Buildings  owned  by  charitable  institutions — ^Renting  portions  of. 

623.  Public  property. 

624.  EJxemption  by  municipality  void. 

625.  Vendee  under  executory  contract  not  exempt  from  payment  of 

tax,  even  when  sold  by  county. 

626.  Property  of  municipal  corporation. 

627.  Wharf  company  in  which  city  owns  interest  property  of  city. 

628.  Right  of  exemption  passed  by  sale. 

629.  Leased  state  lands. 

630.  State  lands  under  contract. 


Index.  707 

Sec. 

631.  School  land — Title  in  state. 

632.  Property  exempt  from  the  operation  of  the  Act  of  1897. 

633.  To  be  construed  in  favor  of  state. 

FRANCHISE  TAX. 

Sec. 

935.  Act  of  1905  amending  articles  of  statute  in  regard  to  franchise 

tax  of  corporations  doing  business  in  Texas. 

936.  An  act  to  define  the  method  of  computing  the  franchise  tax. 

937.  Franchise  of  corporation  property. 

938.  Insufficient  description. 

939.  Failure  to  pay  does  not  forfeit  charter. 

940.  Corporation  proper  defendant. 

941.  Wharf  privileges. 

942.  Double  taxation. 

943.  Street  railroad. 

944.  Delinquent  may  be  placed  in  hands  of  receiver. 

945.  Contract  over  foreign  corporations. 

946.  Act  of  the  30th  Legislature. 

GENERAL   PROVISIONS,   DEFINITIONS,   TERMS,   ETC. 

Sec.    ■ 

1.  Taxes. 

(a)  Refer  to  what. 

(b)  Definition  of. 

2.  Must  be  equal  and  uniform. 

3.  Nature  and  extent  of  power, 

4.  All  property  liable  for  taxes. 

5.  How  levied  and  collected. 

6.  Legislative  power  and  authority. 

7.  Legislature  has  no  power  to  release  taxes. 

8.  Real  estate  includes  what. 

9.  Eminent  domain,  taxation  not. 

10.  Money. 

11.  Farm  products. 

12.  State  releases  mineral  right  but  not  taxes. 

13.  Federal  Const,  not  violated  by  delinquent  tax  act. 

14.  Tax  laws  construed  liberally. 

15.  Due  course  of  law. 

16.  Official  duty  can  not  be  delegative. 

17.  Partition — Allowance  for  taxes  paid. 

18.  Property  bought  in  held  in  trust,  when. 

19.  Road  and  bridge  a  county  tax. 

20.  Special  fund  not  to  be  diverted. 

21.  Dedication. 

22.  Telegraph  company,  constitutional  law. 


708  Taxation  in  Texas. 

Sec. 

23.  Deed  of  trust  providing  for  payment  of  taxes. 

24.  Payment  will  be  enforced. 

25.  Non-payment  of  taxes  presumption  that  right  has  reverted  to 

state. 

26.  Rights  not  affected  by  failure  to  pay  taxes,  when. 

27.  Where  mortgagee  pays,  what  rights  does  he  have? 

28.  Sale  of  one  tract  to  pay  taxes  on  another. 

29.  Disqualification  of  judge. 

30.  Courts  of  equity  should  not,  except  on  clearest  grounds,  inter- 

fere with  collection  of  taxes. 

31.  Where  no  provision  is  made  as  to  source  from  which  revenue 

is  to  be  derived. 

32.  Taxable,  when. 

33.  Vested  rights  in  taxes. 

34.  De  facto  officers. 

35.  State  shall  have  judgment,  except  when. ' 

36.  Tenant  may  purchase  tax  title. 

37.  Timber  on  public  land. 

38.  Where  tax  can  be  divided. 

39.  Detached  territory,  liability  for  taxes. 

HOMESTEAD. 

Sec.  ' 

634.  Liable  only  for  taxes  assessed  against  it. 

635.  Liable  for  taxes,  costs  and  interest  against  it. 

636.  Not  liable  for  special  improvement  assessments. 

637.  Court's  costs. 

638.  Void  tax  sale — ^Repurchase  by  owner — ^Vendor's  lien. 

639.  Sale  of. 

640.  Wife  need  not  be  made  party. 

641.  May  be  sold  separately. 

642.  Redemption. 

643.  Executions  and  administrations. 

644.  Proceeds  from  fire  insurance. 

645.  Judgment  against  husband  good. 
I 

IMPROVEMENT    DISTRICTS. 

Sec. 
929.     Law  regulating  the  mode  of  establishing  same  and  levying  and 
collecting  taxes  in  same. 

IMPROVEMENTS   IN   GOOD   FAITH. 

Sec. 
506.    May  claim  improvements  in  good  faith  under  tax  title  not  void 
on  its  face; 


Index.  709 

Sec. 

507.  Void  tax. 

508.  Evidence  of  not  sufficient. 

509.  Under  tax  deed  must  prove  prerequisites. 

INHERITANCE   TAX. 
Sec. 

933.  An  act  to  tax  property  passing  by  will  or  by  descent  or  by 

grant  or  gift;   taking  effect  on  the  death  of  the  grantor  or 
donor. 

INSURANCE  COMPANIES. 
Sec. 

925.  Act  of  1905.   " 

926.  Occupation  tax  on  gross  premiums. 

927.  Insurance  companies. 

928.  Gross  receipts. 

INTANGIBLE  ASSETS. 
Sec. 

934.  Providing  for  taxing  intangible  assets  of  certain  corporations. 

INTEREST  AND  PENALTIES. 
Sec, 

838.  Constitution. 

839.  Banks. 

840.  Interest  can  not  be  charged  before  tax  is  due. 

841.  From  date  of  judgment — Except. 

842.  Not  usurious. 

843.  Contract  to  pay  taxes  not  usurious. 

844.  Damages  in  dissolution  of  injunction. 

845.  No  right  to  charge  interest  without  authority. 

846.  State  entitled  to  interest. 

847.  Taxes  improperly  enjoined. 

848.  Penalty  after  January  31st. 

849.  Statute  must  provide  for  interest. 

850.  No  interest  without  express  provision. 

851.  Where  part  is  illegal. 

JUDGMENT. 
Sec. 

419.  Conclusiveness  as  to  all  parties. 

420.  Judgment  should  be  in  favor  of  state  and  not  its  officers. 

421.  Res  adjudicata. 

422.  Collateral  attack. 


710  Taxation  in  Texas. 

Sec. 

423.  Direct  or  collateral  attack. 
(a)  When  direct  attack. 

424.  Unknown  owner — Not  subject  to  collateral  attack,  when. 

425.  Recital  of  service. 

426.  Tax  judgment  must  be  void  before  it  can  be  attacked  collat 

erally. 

427.  Judgment  against  unknown  defendants  not  valid,  when. 

428.  Several  parcels  of  land. 

429.  Judgment  on  lots  in  bulk. 

430.  Must  fix  lien  on  each  lot. 

431.  Description  of  land  sufficient. 

432.  Description  insufficient. 

433.  Erroneous  description  in  rolls. 

434.  Conclusiveness  of  judgment. 

435.  Errors  of  procedure  can  not  be  looked  into. 

436.  Suit  to  set  aside  where  brought. 

437.  Judgment  for  license  tax. 

438.  Suit  against  unknown  owner  void,  when. 

439.  Can  not  set  impeach  judgment,  when. 

440.  May  compel  levy  to  pay. 

441.  Pendente  lite. 

442.  Personal  judgment  may  be  recovered. 

443.  Personal  judgment — Levy  of  city  taxes. 

444.  No  personal  judgment  can  be  rendered  on  an  invalid  assess- 

ment. 

445.  City  entitled  to  personal  judgment. 

446.  Recitals  of  placing  in  possession — Surplusage. 

LEVY. 

Sec. 

40.  State  and  county  taxes,  how  levied. 

41.  Term  of  court,  adjourned  meeting. 

42.  Levy  not  full  and  explicit — How  explained. 

43.  Levy  valid  if  not  sufficient. 

44.  Directory,  when. 

45.  Must  be  a  levy. 

46.  Levy  by  city  or  town. 

47.  Self-acting  levy. 

48.  May  compel  levy  by  mandamus. 

49.  Levy  must  be  made  in  the  mode  prescribed. 

50.  Levy  based  upon  assessment  roll — ^When  to  be  made. 

51.  Time  and  manner  of  levy. 

52.  Power  of  counties  to  levy  under  Act  of  1848. 

53.  Annual. 

54.  Debts  existing  prior  to  Constitution  of  1876. 

55.  Purpose  of  levy  must  be  stated. 


Index.  711 

Sec. 

56.  Levy  at  call  term  of  county  court. 

57.  See  order  of  commissioners'  court  held  not  to  be  general  levy. 

58.  Road  tax — Limitation  of  levy. 

59.  Partial  illegality, 

60.  Levy  of  tax  to  provide  for  the  payment  of  debts. 

61.  Not  in  excess,  when. 

62.  Can  not  exceed  limit — Excessive. 

63.  Mandamus  will  not  lie  when  limit  is  reached. 

64.  Levy  of  city  taxes  for  fifteen  months  valid,  when. 

65.  Commissioners'  court — ^Validity  of  tax  levy — Collateral  attack. 

66.  City  of  El  Paso. 

67.  Sufllciency  of  levy. 

68.  Extra  levy. 

69.  Levies  for  state  and  county  taxes. 

70.  Certain  tax  rolls  for  1905  validated. 

71.  Validating  levies  at  special  session  of  commissioners'  court. 

72.  Acts  30th  Leg.,  creating  a  board  to  calculate  state  taxes. 

LICENSE  AND  OCCUPATION  TAX. 
Sec. 

689.  One-half  state  tax. 

690.  Tax  shall  be  equal  and  uniform. 

691.  Levy  for  1900. 

692.  Cities  of  1900  inhabitants  or  over  incorporated  under  general 

law  shall  have  power  to  levy  and  collect  occupation  tax. 

693.  Occupations  that  are  subject  to  taxation. 

694.  Occupation  tax — liabilities. 

695.  Power  of  city  council  to  provide  for  assessing,  taxes,  etc. 

696.  Collection  of  license  tax,  etc. 

697.  Act  of  30th  Legislature  providing  for  the  levy  of  occupation 

taxes  on  certain  occupations. 

698.  Repealing  taxes  on  certain  occupations. 

699.  Act  30th  Legislature  providing  occupation  tax  on  dealers  in  malt 

liquors  in  local  option  districts. 

700.  Act  30th  Legislature  in  regard  to  license  and  regulating  sale  of 

intoxicating  liquors. 

701.  Relating  to  the  payment  of  certain  occupation  taxes  for  remain- 

der of  1907. 

702.  Occupation  tax  upon  persons  engaged  in  the  business  of  deal- 

ing in  unearned  wages  of  another. 

703.  Tax  on  dealers  in  non-intoxicating  malt  liquors. 

704.  Occupation  tax  on  soliciting  orders  in  local  option  districts. 

705.  Refunding  unearned  liquor  dealer's  license. 

706.  Cannon  crackers  or  toy  pistols. 

707.  Levy — Sufficiency. 

708.  Must  show  levy  of  tax. 


712  Taxation  in  Texas. 

Sec. 

709.  Not  liable,  when. 

710.  Occupation  not  property. 

711.  Courts  can  not  interfere,  when. 

712.  Billiard  table  must  be  kept  for  profit. 

713.  Temporary  closing  does- not  forfeit  because,  when. 

714.  Occupation  and  privileges. 

715.  Telegraph  company — Interstate  commerce. 

716.  State  must  first  fix  the  tax  before  city  can  tax. 

717.  Photograph  gallery. 

718.  Lightning  rod  agents — Interstate  commerce. 

719.  Foreign  corporation — Interstate  commerce. 

720.  Commercial  travelers. 

721.  Keeping  pool-table  without  license. 

722.  Fine  for  violating  license  law. 

723.  Liquor  property  of  firm  no  defense. 

724.  Vendor  of  medicine. 

725.  Barber. 

726.  Oil  producers. 

727.  Indictment  not  bad  for  duplicity. 

728.  Letting  wagon  for  hire. 

729.  Interstate  commerce. 

730.  City  ordinance — ^Vehicle  not  taxed  by  state,  void. 

731.  Social  club. 

732.  Real  estate  agent  can  collect  commission,  when. 

733.  Wild  west  shows. 

734.  Local  option — Sale  of  liquors. 

735.  Banks — Uniformity  of  taxation. 

736.  Occupation — Flying-jenney. 

737.  Sufficiency  of  information. 

LIMITATION. 

Sec. 

902.  State  law. 

903.  State  and  county  taxes  not  barred  since  1876. 

904.  City  of  Houston. 

906.  A  retroactive  law  of  limitation. 

906.  State  and  county  taxes  not  barred. 

907.  Four-years  limitation  of  action. 

908.  Limitation  against  action  for  taxes — Applies  to  municipal  cor- 

poration and  purchaser. 

909.  Suit  to  recover  land  sold  for  taxes. 

910.  Repeal  of  act  not  a  bar  to  limitation. 

911.  Constitutional  law,  releasing  debt  to  city. 

912.  Constitutionality  of  revocation  law  of  limitation. 

913.  Installments  on  bonds  barred  in  four  years. 


Index.  713 

Sec. 

914.  Reasonable  time  allowed  after  passage  of  limitation  act  in  which 

to  file  suit. 

915.  Time  act  repeal  not  to  be  computed. 

916.  Mere  lapse  of  time  no  defense.  * 

917.  Limitation  of  action  for  money  paid  under  protest. 

LOCAL   IMPROVEMENTS   BY  ASSESSMENT. 

Sec. 

1067.  Act  of  31st  Legislature  authorizing  cities  and  towns  to  con- 

struct street  improvements. 

1068.  Taxes  for  local  improvements. 

1069.  Constitutional  provisions  as  to  taxation. 

1070.  Power  of  cities  incorporated  under  general  law  to  have  streets 

graded,  etc. 

1071.  Estimate  of  cost  of  improvement  shall  be  made. 

1072.  Property  levied  on  and  sold  for  taxes  for  improvements,  when 

and  how,  etc. 

1073.  Suit  against  owner  of  property  for  improvement  tax,  when,  etc. 

1074.  Constitutional. 

1075.  Valid  street  improvement  assessments. 

1076.  According  to  benefits  derived. 

1077.  Improvement  districts. 

1078.  Local  improvements.  « 

1079.  Refunding  paving  certificates. 

1080.  Improvements  of  sidewalks  under  police  power. 

1081.  Street  railroads. 

1082.  Contractor  to  look  to  property  owner — ^Void  assessment. 

NAVIGATION  DISTRICTS. 

Sec. 
932.    Act  of  the  31st  Legislature  providing  for  navigation  district  and 
prescribing  mode  and  manner  of  collecting  taxes  in  same. 

PARTIES. 

Sec. 

293.  Parties. 

294.  Present  owner  of  land  proper  party. 

295.  City  of  Houston. 

296.  Suit  in  name  of  city. 

297.  Bondholders  necessary  parties. 

298.  Heirs  not  necessary  parties,  when. 

299.  Husband  necessary  party. 

300.  County  taxes  delinquent  collectible  by  state. 

301.  Unknown  owners  are  not  unknown  where  title  is  of  record  and 

residence  shown. 


714  Taxation  in  Texas. 

Sec. 

302.  Lien  holders. 

303.  Cases  in  point  only  when  party  is  in  possession. 

304.  All  persons  claiming  interest. 

305.  Action  against  state  oflScer  not  against  state. 

306.  State  necessary  party  in  action  to  restrain  collection  of  taxes. 

307.  State  officer's  right  to  sue. 

308.  One  in  possession  must  be  party. 

309.  Estate  as  defendant. 

310.  State  and  county  not  necessary  parties,  when. 

311.  Sale  before  death. 

312.  Community  or  separate  property. 

PAYMENT. 
Sec. 

524.  Taxes  payable  in  money  or  scrip. 

525.  Payment — How  proved. 

526.  Where  made. 

527.  Penalty  of  failure  to  pay  taxes. 

528.  Taxes,  etc.,  of  cities  less  than  10,000  inhabitants  collectible  in 

current  money  only. 

529.  Action  will  not  lie  against  tax  collector,  when. 

530.  What  constitutes  involuntary  payment. 

531.  Not  compulsory  payment. 

532.  Payment — ^How  made. 

533.  Payment  in  coupons  must  be  before  suit. 

534.  Receipts  evidence  to  show  payment. 

535.  Receipt  no  positive  evidence  of  payment. 

536.  Right  to  rebut  receipt  and  show  that  taxes  were  not  paid. 

537.  Scrip  not  receivable. 

538.  Certificate  of  tax  collector  not  sufficient  evidence  of  payment 

of  taxes. 

539.  Payment  in  warrant. 

540.  May  compromise  by  deed. 

541.  In  money,  not  in  services. 

542.  Reduction  of  tax  after  payment. 

543.  Tender  of  part. 

544.  Must  show  payment  of  taxes  before  validity  of  taxes  can  be 

questioned. 

545.  Presumption  of  payment  by  one  rendering. 

546.  Payment  before  taxes  are  due  not  binding  on  state. 

547.  Credit  to  tax  collector  not  payment. 

PERSONAL  PROPERTY. 
Sec. 

646.  Personal  estate  includes  what. 

647.  Credits  and  securities — ^National  bank  stock — ^Non-residents. 


Index.  715 

Sec. 

648.  Bonds  and  securities. 

649.  Duty  of  assessor  and  collector  of  cities  and  towns  to  make  lists 

of  personal  property. 

650.  Separate  value  of  each  piece  not  required  in  assessment. 

651.  Assessment,  description  of  property. 

652.  Cattle  taxed  in  county  where  situated. 

653.  Non-residence  of  owner. 

654.  Sale  of  personal  property. 

655.  Assessment  of  taxes  of  telegraph  company. 

656.  Corn  and  cotton — Division  of  tax.\ 

657.  Cattle  ranging  in  two  counties. 

658.  Taxes  on  indebtedness  of  non-resident. 

659.  Fish— Acts  29th  Leg.,  p.  128. 

660.  Vessels — Taxable  where  owner  resides. 

661.  Vendor's  lien  notes  owned  by  non-residents  but  within  state. 

PLEADINGS. 

Sec. 

317.  Must  be  verified. 

318.  Sufficiency  of  verification  of  petition. 

319.  Verification  of  answer. 

320.  Answer  not  verified  must  be  specially  excepted. 

321.  Several  defendants. 

322.  Exhibits. 

323.  Lien. 

324.  Against  owner. 

325.  City  of  Galveston. 

326.  Purpose  of  tax. 

327.  Not  necessary  to  plead  details. 

328.  City  ordinances  must  be  plead  before  they  can  be  introduced 

in  evidence. 

329.  Duly  assessed  sufficient. 

330.  Description  of  real  estate. 

331.  Answer  of  defendant. 

332.  Petition  must  allege  ownership  in  assessment  against  unknown 

owner. 

333.  Allegations  sufficient  to  arrive  bulk  assessment — Presumption 

of  legality. 

334.  Amended  petition  must  be  verified. 

335.  Cross-bill  asking  relief — Invoice  tax  sale — Direct  attack. 

336.  Fraud  in  assessment. 

337.  Allegations — What  is  necessary. 

338.  Pleading  of  ordinance  sufficient. 

339.  Must  state  property  within  territory  taxed. 

340.  Description  of  land. 


716        *  Taxation  in  Texas. 

Sec. 

341.  Answer  must  deny  specifically. 

342.  Petition  need  not  allege  existence  of  debt,  when. 

343.  Need  not  plead  city  charter  when  a  public  act. 

344.  Allegation  that  property  was  duly  assessed  sufficient. 

345.  Petition  not  demurrable,  when. 

346.  Averment  assessed  for  taxes  sufficient. 

347.  Must  state  year. 

348.  Allegations  of  petition — Land  in  another  county. 

349.  Allegation  to  enjoin  irregular  assessments. 

350.  School  tax. 

351.  To  enjoin  illegal  excess  must  allege  what. 

352.  Not  defective  not  to  allege  collector's  failure  to  collect. 

353.  Must  state  purpose  and  amount  of  tax. 

POLL  TAX— JURORS— QUALIFICATION  OF  VOTERS. 

Sec. 

1083.  Who  are  qualified  voters. 

1084.  Who  are  qualified  to  vote  in  city,  town,  etc.,  election. 

1085.  Collection  of  poll  tax. 

1086.  What  poll  tax  receipt  must  show — Candidate  can  not  pay  taxes 

for  another. 

1087.  Persons  exempt  from  payment  of  poll  tax  to  obtain  certificate 

of  exemption — Form  of. 

1088.  Persons  not  21  years  old  to  get  certificate  of  exemption. 

1089.  When  one  swears  falsely,  duty  of  collector. 

1090.  Removing  from  one  precinct  to  another  county. 

1091.  Removing  to  another  county. 

1092.  Collector  to  require  proof  of  residence  and  of  statement,  when. 

1093.  Tax  collector's  fees. 

1094.  Tax  collector  giving  receipt  to  fictitious  persons. 

1095.  Tax  collector  giving  receipt  to  wrong  person. 

1096.  Failing  to  return  tax  receipt  to  owner. 

1097.  Selling  poll  tax  receipt. 

1098.  Exemption. 

1099.  Delinquent  may  be  compelled  to  work  road. 

1100.  Manner  of  payment  as  to  qualification  to  vote. 

1101.  Loaning  money  to  pay  poll  tax. 

1102.  Equality  and  uniformity. 

1103.  Uniformity — Road  law. 

1104.  Statutory  provisions — Poll  tax. 

1105.  Levy  to  pay  jurors. 

1106.  Qualification  of  juror. 

1107.  County  poll  tax. 

1108.  City  poll  tax  of  cities  of  10,000  inhabitants  or  over. 

1109.  Must  pay  to  qualify  as  juror,  if  challenged. 

1110.  Must  challenge  as  to  disqualification. 


Index.  717 

Sec. 

1111.  Qualification,  poll  tax. 

1112.  Court  may  dispense  with  requirement  of  payment  of  poll  tax, 

when. 

1113.  Who  are  disqualified  in  general. 

1114.  Notice  of  election. 

1115.  Evidence  as  to  who  are  taxpayers. 

1116.  Not  necessary  that  taxpayer's  name  appear  on  roll. 

1117.  Must  be  taxpayer  in  school  district. 

PURCHASER  AT  TAX  SALE. 

Sec. 

492.  Void  sale — Conditions  of  relief.  , 

493.  Sale  for  taxes — Notice. 

494.  Burden  of  proof  different  where  party  is  in  court. 

495.  Possession  pending  redemption. 

496.  Purchased  by  owner. 

497.  Equitable  lien  for  taxes  paid. 

498.  Not  entitled  to  refund  under  void  judgment. 

499.  Not  innocent  purchaser  when. 

500.  Acquired  no  title  against  one  in  possession  not  a  party  to  suit. 
5Q1.  Legality  of  partnership  to  purchase  at  tax  sale. 

502.  Right  to  question  title  without  payment  of  taxes. 

PURCHASER   IN   GOOD   FAITH. 

Sec. 

503.  Right  to  have  amount  paid  refunded. 

504.  Purchaser  in  good  faith. 

505.  Purchaser  of  property  with  taxes  due. 

RAILROADS. 

Sec. 

678.  Assessment  by  railroads. 

679.  Railroads  to  return  sworn  statements,  when,  etc. 

680.  Property  shall  be  assessed. 

681.  Mode  of  assessment. 

682.  Municipal  taxes. 

683.  Gross  receipts. 

684.  Exemption  I.  &  G.  N.  R.  R.  Co.    ' 

685.  Exemptions  of  property — Pleadings. 

686.  Assessment  as  to  bridges  as  roadbed. 

687.  Improper  rendition — Double  assessment. 

688.  Evidence  of  payment. 


718  Taxation  in  Texas. 

RE-ASSESSMENT  OF  PROPERTY  FOR  TAXES,  WHICH   HAS  NOT 
BEEN   ASSESSED,  OR  WHICH    HAS   BEEN    IM- 
PROPERLY ASSESSED. 

Sec. 

126.  State  and  county  taxes.  \ 

127.  Assessment  of  real  property  for  previous  years. 

128.  Back  taxes  on  unrendered  lands. 

129.  Comptroller  to  prepare  list  each  year. 

130.  Comptroller  to  forward  list. 

131.  The  boards  to  value  such  lands. 

132.  Three  rolls  to  be  made. 

133.  Assessment  of  back  taxes  due  cities  and  towns. 

134.  Re-assessment. 

135.  Act  of  1897  did  not  validate  assessment  for  back  years. 

REDEMPTION. 
Sec. 

580.  Redemption  under  summary  sale. 

581.  Land  sold  to  state. 

582.  Land  sold  for  city  or  town  taxes. 

583.  An  act  to  permit  the  owners  of  land  or  lots  sold  to  the  state  or 

to  any  city  or  town  for  taxes  to  redeem  the  same. 

584.  Who  may  redeem. 

585.  Land  sold  to  state,  or  city — Act  30th  Leg. 

586.  Land  sold  to  state  or  to  any  city  or  town. 

587.  Sec.  13,  Art.  8,  of  Const,  refers  to  summary  sales. 

588.  Right  to  hold  possession  until  period  of  redemption  has  expired. 

589.  No  right  to  redeem  under  city  charter  containing  no  redemption 

provision. 

590.  Judgment — ^Writ  of  possession. 

591.  Property  sold  for  taxes  prior  to  1895. 

592.  Persons  entitled  to  redeem. 

593.  Under  charter  city  of  Houston. 

594.  Right  to  refuse  redemption  of  part  of  tract. 

595.  Owner  may  redeem  by  paying  to  the  purchaser,  even  if  he  had 

sold  to  another. 

596.  Title  remains  until  time  of  redemption. 

597.  Right  to  redeem  for  taxes  before  law  of  redemption. 

598.  Tender  may  be  made  through  agents. 

599.  Effect  of  tender. 

600.  Collector  entitled  to  what  fees. 

601.  Property  of  infant,  feme  covert  or  lunatic. 

602.  Judgment  does  not  affect  right  to  redeem. 

603.  After  two  years  title  perfect. 

604.  Right  of  redemption  before  sale. 

605.  Redemption  after  sale. 


Index.  "  719 

REMEDIES  OF  TAXPAYER. 

Sec, 

557.  Can  not  mandamus  comptroller,  when. 

558.  Injunction  will  not  issue  when. 

559.  May  enjoin,  when. 

560.  Must  pay  amount  before  injunction  will  issue. 

561.  May  inquire  into  validity  of  taxes  after  sale  of  land. 

562.  Payment — When  necessary. 

563.  Lapse  of  time. 

564.  Want  of  levy. 

565.  Extension  of  new  limits. 

566.  Valuation  of  property. 

567.  Relief  granted  where  other  property  is  assessed  with  owners. 

568.  Burden  of  proof. 

569.  Irregularities  of  a  tax-roll. 

570.  Tax  collector's  deed  a  cloud  on  title. 

571.  Must  pay  tax  due,  when. 

572.  Can  not  enjoin  issue  of  bonds,  when. 

573.  Taxes  on  void  bonds, 

574.  Right  of  taxpayer  to  raise  objections  to  legality  of  tax  levy  and 

bond  issuance. 

575.  Certain  defenses  can  not  be  raised  in  suit  for  taxes. 

576.  Not  estopped  by  silence. 

577.  Taxpayer  has  interest  to  enjoin. 

578.  Relief  from  void  sale. 

579.  Payment  of  taxes  not  a  condition  precedent  to  defense. 

RETROSPECTIVE   AND   EX-POST   FACTO   LAWS. 
Sec. 

852.  Omitted  property. 

853.  Levy. 

854.  Mode  of  procedure. 

855.  EMdence. 

856.  Can  not  prescribe  retroactive  penalty. 

857.  Remedy  pending  litigation, 

RIGHT  TO    RECOVER   TAXES   PAID. 

Sec. 

548.  Not  authorized  may  be  recovered. 

549.  Taxes  assessed  without  authority  of  law  are  void  and  may  be 

recovered  back. 

550.  .  Illegal  tax — Payment  under  protest. 

551.  Taxes  paid  to  prevent  sale  are  compulsory  and  can  be  recov- 

ered, 

552.  When  taxes  paid  can  be  recovet'ed. 

553.  Right  to  recover  taxes  paid. 


720  Taxation  in  Texas. 

Sec. 

554.  Voluntary  and  involuntary  payments. 

555.  Action  to  recover  taxes. 

556.  Right  to  recover  tax  paid  at  void  sale, 

SALE  OF  PROPERTY  UNDER  DECREE  OF  FORECLOSURE. 

Sec. 

447.  Sale  of  property  for  taxes  under  decree  of  foreclosure. 

448.  Notice  of  place  of  sale  must  be  stated. 
(a)  Inadequacy  of  price. 

449.  Will  not  set  aside  for  inadequacy  where  right  to  redeem  exists. 

450.  In  gross. 

451.  Taxation — Sale  for  delinquent  taxes — ^Bona  fide  purchaser. 

452.  What  is  necessary  to  pass  title. 

453.  Against  unknown  heirs  and  unknown  owners. 

454.  Citation  by  publication. 

455.  Effect  of  reversal  of  judgment. 

456.  Order  of  sale  must  be  shown. 

457.  Homestead — Sale  of   part   of   land — Costs — Misappropriation — 

Irregularity  and  inadequacy  of  price. 

458.  Collateral  attack,  when. 

459.  Failure  to  notify  owner  or  attorney  not  error,  when. 

460.  Notice  to  defendant  necessary  under  Art.  2366,  R.  S.  1895. 

461.  Notice  only  necessary  to  be  mailed. 

462.  Bona  fide  purchaser — ^Want  of  service — Costs. 

463.  Sale  other  than  summary  constitutional. 

464.  State's  right  to  waiver  of  title  and  to  sue  for  taxes. 

465.  Sale  to  state  does  not  defeat  tax  lien. 

466.  Possession  by  purchaser. 

467.  Tax  sale  unorganized  counties. 

SCHOOLS  AND  SCHOOL  DISTRICTS. 
Sec. 

819.  Act  of  April  5th,  1907,  fixing  rate  for  free  school  purposes. 

820.  Local  taxation  for  school  purposes. 

821.  Levy  for  maintenance — Increase  of  levy — Lien. 

822.  Power  to  levy  tax. 

823.  Levy  once  exercised  is  exhausted  for  years. 

824.  Levy  of  taxes  vested  in  local  boards. 

825.  Failure  to  designate  levy  by  school  districts  only  an  irregularity. 

826.  Action  on  part  of  city  required. 

827.  Qualification  of  voter. 

828.  Bondholders  necessary  parties,  when. 

829.  Irregularities  will  not  restrain  the  collection  of  tax. 

830.  Sufficiency  of  notice  to  impose  tax. 


iNDEk.  721 


Sec. 

831.  Separate  roll  not  necessary. 

832.  Can  not  establish  lien,  when. 

833.  Defense — Not  available. 

834.  Limitations  on  rate. 

835.  Incorporated  city  or  town — Limitation  of  tax. 

836.  Excessive  levy  curative  act. 

837.  School  tax — City  council  must  levy. 


SERVICE. 

Sec. 

354.  Service — How  made. 

355.  Notice  to  non-residents — Unknown  owners  and  other  proceed- 

ings in  suits  for  taxes. 

356.  Insufficient  service — Judgment  void. 

357.  What  citation  by  publication  should  contain. 

358.  Personal  judgment. 

359.  Jurisdiction  of  non-resident. 

360.  Citation  by  publication  strictly  construed. 

361.  Sufficiency  of  notice  and  publication  against  unknown  owners. 

362.  Citation  in  tax  cases  different. 

363.  Date  of  filing. 

364.  Act  of  1897  repealed  all  other  laws. 

365.  Where  one  is  in  possession  and  title  of  record. 

366.  Appointment  of  attorney  and  statement  of  facts. 

367.  Proof  of  publication. 

368.  Void  service  against  unknown  owner. 

369.  Must  describe  land. 

370.  May  be  addressed  directly  to  defendants. 

371.  Citation  against  unknown  owners  governed  by  the  special  stat- 

utes. 

372.  Proper  affidavit  must  be  filed  or  judgment  is  invalid. 

373.  May  be  collaterally  attacked,  when. 

374.  When  good  against  unknown  owners. 

375.  Liability  of  county  to  pay  for  citation  by  publication 

SHERIFF. 

Sec. 

1042.  Sheriff  tax  collector. 

1043.  Sheriff  entitled  to  fee  for  selling  and  making  deed,  etc. 

1044.  Fees  on  notices. 

1045.  Commission  on  sales. 

1046.  Right  of  sheriff  to  withhold  his  costs  from  proceeds  of  tax  sales. 


46 


722  Taxation  in  Texas. 

SUIT  TO   FORECLOSE  TAX  LIENS. 
Sec. 

287.  Suits  to  foreclose  liens  for  state  and  county  taxes. 

288.  The  particular  property  must  have  been  sold  or  reported  delin- 

quent before  suit  for  tax  on  same  will  lie. 

289.  Right  to  sue  for  taxes. 

290.  Consolidation  for  suits. 

291.  Delinquent  record. 

292.  Action  in  rem.  ' 


SUMMARY  SALE  OF   PROPERTY   FOR  TAXES   DUE. 
Sec. 

257.  Difference  between  sale  of  property  under  summary  sale  and 

sale  under  a  regular  judgment  of  foreclosure. 

258.  Constitutional  provision. 

259.  Forced  collection  to  begin,  when. 

260.  Personal  property  may  be  pointed  out. 

261.  Tax  lien  superior  to  assignment — Attachment — Inheritance  or 

devise  except  when. 

262.  All  property  liable  for  taxes. 

263.  Sales  of  personal  property — How  made. 

264.  If  the  property  levied  upon  be  insufficient. 

265.  Sale  of  real  estate  when  personal  property  is  insufficient. 

266.  Notice  of  the  sale  of  real  estate  for  taxes — How  made. 

267.  List  to  be  posted. 

268.  Sale  of  real  estate  may  be  continued  from  day  to  day. 

269.  Sales  of  land — How  made. 

270.  The  tax  deed  and  its  requisites. 

271.  Sales  to  be  reporte'd  to  the  commissioners'  court. 

272.  Redemption  of  land  sold  for  taxes. 

273.  Redemption  from  private  purchasers. 

274.  Receipt  of  collector's  notice,  when. 

275.  Relief,  when. 

276.  Certificate  of  redemption  from  collector. 

277.  Lands  to  be  bid  in  for  state,  when. 

278.  May  redeem,  how. 

279.  If  not  redeemed. 

280.  May  redeem  in  what  manner. 

281.  Commissioners'  board  to  sit  as  a  board  of  inquiry,  when. 

282.  Sale  for  taxes  due  towns  and  cities. 

283.  Sheriff  to  execute  deeds. 

284.  What  must  be  proven. 

.  285.  Summary  sale  not  nullified. 

286.  Summary  sale  prohibited  by  Constitution  of  1869. 


Index.  723 

TAX  COLLECTOR. 

Sec. 

965.  Collector  to  keep  books. 

966.  Tax  collector  to  be  furnished  books,  etc. 

967.  Unlisted  property — Supplemental  roll. 

968.  Election  and  term  of  collector. 

969.  Vacancies,  how  filled. 

970.  Sheriff  as  collector,  when. 

971.  Bonds  and  oaths  of  collector, 

972.  Liability  of  tax  collector  and  evidence  against. 

973.  New  bond. 

974.  Bond  for  county  taxes. 

975.  All  bonds  to  be  first  approved. 

976.  May  appoint  deputies. 

977.  Rolls  to  be  warrant. 

978.  Collector  for  all  taxes. 

979.  Collections — When  to  begin. 

980.  Shall  keep  office  at  county  seat. 

981.  Tax  receipt  and  its  requisites. 

982.  Quarterly  reports — Requisites  of — Duties  of  collector. 

983.  Make  report  to  commissioners'  court. 

984.  List  of  delinquents  and  insolvents  to  be  made  out. 

985.  Collector  to  endeavor  to  collect  delinquent  taxes. 

986.  Non-residents. 

987.  Forced  collections  to  begin,  when. 

988.  Collector  to  file  complaint,  when, 

989.  Compensation. 

990.  For  occupation  tax. 

991.  Fees  to  be  retained. 

992.  Fees  less  than  maximum — Statements  of  fees  collected — Excess 

to  be  paid  into  county  treasury. 

993.  Deputies  and  assistants,  appointment  and  compensation. 

994.  Collection  of  delinquent  fees — Fees  not  to  be  remitted. 

995.  Penalty  for  failure  to  charge  up  fees,  or  for  remission  of  fees, 

996.  Payment  for  ex-officio  services. 

997.  Officers  to  keep  a  correct  statement — Accounts  to  be  examined 

by  the  grand  jury. 

998.  Certain  officers  not  required  to  make  a  report,  keep  a  statement. 

999.  Statement  by  tax  collector  and  assessor. 

1000.  Fiscal  year — At  what  times  reports  must  be  made  and  by  whom. 

1001.  Compensation  for  one  levy  only. 

1002.  Payments  of  moneys, 

1003.  Notification  to  pay,  etc. 

1004.  The  collector  to  prepare  delinquent  tax  record. 

1005.  Collector's  fees  under  delinquent  tax  acts. 

1006.  Duty  of  the  tax  collector  to  collect  and  prepare  lists  each  year 

under  the  delinquent  tax  act. 


724  Taxation  in  Texas. 

Sec. 

1007.  Must  account  for  taxes  collected  whether  valid  or  not. 

1008.  Application  of  payment. 

1009.  Duty  of  tax  collector  when  delinquent  has  no  property  in  county 

out  of  which  taxes  can  be  collected. 

1010.  Receipts  to  creditors. 

1011.  City  bonds. 

1012.  Rolls  must  be  delivered. 

1013.  Parties  to  suit  on  bond. 

1014.  Evidence  in  suit  on  bond. 

1015.  Suit  against  defaulting — Pleadings — Interest. 

1016.  Collection  by  authorized  party  is  collection  by  county, 

1017.  Suspension. 

1018.  Additional  bond. 

1019.  Removal  from  office, 

1020.  Cities — ^Action  on  bond — Proof  necessary. 

1021.  Successor  of  sheriff.  ' 

1022.  No  release  of  sureties,  when. 

1023.  Practice  in  suit  against  what  must  be  shown. 

1024.  Sureties   not   released   until  new   bond   approved. 

1025.  Suit  on  bond — Letter  from  comptroller  admissible. 

1026.  No  liability  as  to  county  or  sureties  on  bond  on  taxes  collected 

without  authority. 

1027.  Suit  on  delinquent  sheriff  bond. 

1028.  Can  not  question  validity  of  act  to  avoid  payment  of  moneys 

collected, 
(a)  Not  entitled  to  fees  from  state  when  land  is  bid  in  by 
state  unless  redeemed  by  owner. 

1029.  Liability  of  surety  not  limited  when. 

1030.  Interest  on  amount  in  default. 

1031.  Suit  against  to  recover  tax  on  illegal  valuation. 

1032.  Collection  on  municipal  bonds. 

1033.  Entitled  to  one  dollar  for  each  correct  assessment, 

1034.  Rights  of  surety. 

1035.  Limitation  as  to  collecting. 

1036.  Not  liable  to  county  under  bond  to  state. 

1037.  Can  not  deny  officer's  election. 

1038.  A  trespasser  when. 

1039.  Right  to  emoluments. 

1040.  Authority  to  tax  collector. 

1041.  Tax  collector  alone  can  collect. 

TAX  DEED. 
Sec. 

474.  Assessor  and  collector  shall  make  deed  to  purchaser  to  property 

sold  for  taxes — ^Effect  of  deed — Right  of  redemption,  etc. 

475.  Collector's  deed. 


Index.     ^  725 

Sec. 

476.  No  evidence  of  title. 

477.  Prima  facie  evidence  of  what. 

478.  Description  of  property. 

479.  Sufficiency  of  description. 

480.  Description  in  deed. 

481.  Deed  of  summary  sale  of  lots  in  gross  void,  when. 

482.  Description  void,  when. 

483.  Invalid. 

484.  Land  not  described. 

485.  All  prerequisites  must  be  proved. 

486.  Deed  of  tax  collector  strictly  construed — Reasons  for  so  doing. 

487.  Validity  of  tax  deed — Burden  of  proof. 

488.  Uncertainty  in  receipts  in  deed. 

489.  Levy  must  be  shown  to  substantiate  deed. 

490.  Acknowledgment. 

491.  Effect  of  the  deed  made  by  the  city  assessor  and  collector  to 

property  sold  for  taxes. 

TAX  FOR  CAUSEWAYS. 

Sec. 
931.    Tax  for  causeways. 

TAX  LIEN. 

Sec. 

515.  Delinquent  taxes  lien  on  land. 

516.  Tax  lien   superior  to  assignment,   attachment,   inheritance   or 

devise,  except. 

517.  Foreclosure  and  sale  for  past  releases  all. 

518.  Purchaser  under  tax  judgment. 

519.  Lien  only  on  separate  tracts. 

520.  Foreclosure  of  tax  lien. 

521.  Priority  of  tax  lien. 

522.  When  lien  attaches. 

523.  Tax  lien — Public  use. 

TAX  SALE. 

Sec. 

468.  Illegal  tax  sale  res  adjudicata — Interest. 

469.  Law  of  1866  requirements  as  to  sale. 

470.  Condemnation  of  land  for  taxes  under  Act  June  2d,  1873,  must 

first  show  that  there  is  no  personal  property. 

471.  Omission  in  list  of  number  of  certificate — Sale  void. 

472.  Indefinite  description  of  land  in  assessment  conveys  no  title. 

473.  Tax  sale — Condition  precedent — ^Burden  of  proof. 


726  Taxation  in  Texas. 

TAX  UPON   GROSS   RECEIPTS. 

Sec. 

918.  Act  providing  for  levying  and  collecting  taxes  upon  the  gross 

receipts  of  certain  individuals,  firms  and  corporations. 

919.  Gross  receipts  tax  bill. 

920.  Injunction  will  not  lie  to  restrain  officers. 

921.  Not  applicable  where  road  is  incorporated  under  Act  ot  Con- 

gress. 

922.  Taxes  on  corporate  privileges. 

923.  Oil  companies. 

924.  Interstate  commerce  does  not  apply. 

UNORGANIZED  COUNTIES. 
Sec. 

947.  Property  in  unorganized  counties. 

948.  Lands  of  non-residents  in  unorganized  counties. 

949.  Lands  in  unorganized  counties. 

950.  Duties  of  comptroller  in  relation  thereto. 

951.  May  appeal  from  comptroller's  assessment. 

952.  May  levy  upon  and  sell,  when. 

953.  Sale. 

954.  Redemption. 

955.  Tax  deed. 

956.  List  of  purchasers  to  be  kept  in  office. 

957.  Deed  shall  vest  good  title,  when. 

958.  County  taxes  to  be  paid,  when. 

959.  Comptroller  to  keep  taxes  of  unorganized  counties,  etc. 

960.  Same  subject. 

961.  Special  deposit  to  be  made  by  comptroller. 

962.  Taxes  upon  land^  of  non-residents  in  unorganized  counties. 

963.  Personal  property,  where  taxable. 

964.  Newly  organized  county. 

,   VENDOR   AND  VENDEE. 
Sec. 

510.  Purchaser  under  warranty  deed. 

511.  Sale  after  January  1st. 

512.  Assumption  of  taxes  by  vendee. 

513.  Implied  warranty  against  tax  lien. 

514.  Cattle,  sale  of. 


TABLE  OF  CASES. 


Abney  v.   State    (47   S.   W.    1043)    (20   T.   C.   A.   101) 53,  500 

Acklin  V.  Paschal   (48  Tex.  147) 311 

Adams  v.  Shelbyville    (57  N.  E.  118)    (49  L.  R.  A.  802)    (47  Am. 

St.    484)     678 

Adair  v.  Robinson  (25  S.  W.  734)    (6  T.  C.  A.  275) 372 

Albany  Brewing  Co.   v.   Meriden  .(48   Conn.    243) 131 

Alexander  v.  Helber,  35  Mo.  334 ) 59 

Allbright  v.  The  Governor  of  Texas   (25  Tex.  687) 86,  650 

Allen  V.  Courtney  (58  S.  W.  200)  '(24  Tex.  C.  A.  86) 247,  283 

Allen  V.    Smith    (25   Ark.   495)    237 

Allen  V.  Woodson   (60  Tex.  651) ' 305 

Allen  V.  Wyser  (29  Tex.  151) 230 

Almey  v.  Hunt  (48  111.  45)    300 

Altgelt  V.  City  of  San  Antonio  (81  Tex.  436)   (17  S.  W.  75) .  . .  .225,  347- 

Alvord  Nat.  Bank  v.  Ferguson   (126  S.  W.  622) 354 

Amato  V.  Dreyfus   (34   S.  W.  450) 425 

Ammons  v.  Dwyer  (15  S.  W.  1049) 283 

Andrews  v.  Richardson   (21  Tex.  297) 294 

Aquilla  State  Bank  v.  Knight    (126  S.  W.   893) 214 

Arnold  v.   Supervisors    (43  Wis.   627) 247 

Atcheson   v.    Hutchison    (51    Tex.    223)    265 

Atchison  v.  City  of  Owensboro  (71  S.  W.  864)    (44  T.  C.  A.  441) . .   664 

Auditor-General   v.    Supervisors    (36    Mich.    70) 482 

Audrey  v.  City  of  Dallas  (35  S.  W.  726)   (13  T.  C.  A.  442) 58 

Aulanier  v.   The  Governor   (1   Tex.   665) 47,  420 

Austin  V.  Gas  Company  (69  Tex.  180)    (7  S.  W.  200) 339,  391 

Ayer  &  Lord  Tie  Company  v.  Kentucky  (50  L.  ed.  1082)    (26  Sup. 

Ct.    679)     (202    U.    S.    410) 364 

Babcock  v.  Wolfarth  (80  S.  W.  642)    (35  T.  C.  A.  512) 

229,  232,  234,  238,  253 

Bacon  v.  Hooker   (83  A.   St.  R.  279)    (58  N.  E.  1078)    (117  Mass. 

335)    358 

Bailey  v.  Aransas  County  (102  S.  W.  1159)    (46  T.  C.  A.  547) 

122,   123,  124 

Bailey  v.  White  (13  Tex.  114)    294 

Baker  v.  Panola  County  (30  Tex.  86) 60,  314,  315 

Baldwin  v.  Travis  County  (88  S.  W.  480)    (40  T.  C.  A.  149) 238 

Ball  v.  Carroll  (92  S.  W.  1024)    (42  T.  C.  A.  323) 211,  251,  267 


728  Taxation  in  Texas. 

Bank  v.  Fenno  (8  Wall.  533) 46 

Bank  V.  Terrell  (78  Tex.  450)    (14  S.  W.  1003) 430 

Bank  v.  United  States   (19  Wall.  227)    204 

Barbee  v.  City  of  Dallas  (64  S.  W.  1018)   (26  T.  C.  A.  571) 346 

Bardsley  v.  Hines   (33  Iowa  157) 237 

Barnes  v.  State  (72  S.  W.  177)    (44  T.  C.  A.  473) 249 

Barrera   v.    Guerra    (122   S.   W.    902) 494 

Barrett  v.  Spence  (67  S.  W.  921)    (28  T.  C.  A.  244) 248 

Bassett  v.  City  of  El  Paso  (88  Tex.  168)    (28  S.  W.  554).. 63,  433,  452 

Bassett  v.  City  of  El  Paso  (30  S.  W.  893) 63',  433,  452 

Baugus  V.  City  of  Atlanta  (74  Tex.  629)   (12  S.  W.  750) 673 

Beals  V.  Hale  (4  How.  37) 483 

Bean  v.  City  of  Brownwood   (T.  C.  A.)    (43  S.  W.  1036)    (91  Tex. 

684)    260,  269,  270,  289,  352,  353 

Bean  v.  City  of  Browndood  (45  S.  W.  897) 260,  269,  270,  289,  352,  353 

Beard  v.  City  of  Decatur  (64  Tex.  11) 665 

Beatty  v.  O'Harrow   (109  S.  W.  414) 495 

Beckett  v.  Cuenin   (Colo.)    (25  Pac.  167)    (22  Am.   St.  399) 237 

Belden  v.  The  State   (46  Tex.  103) 276 

Bennison   v.    City   of   Galveston    (78    S.   W.    1089)    (34    T.    C.    A. 

382)    212,  483 

Bente  v.  Sullivan  (115  S.  W.  350)    333,  354,  485 

Berrendo  Stock  Company  v.  Kaiser  (66  Tex.  352) 493 

Berry  v.  City  of  San  Antonio  (92  Tex.  319)    (46  S.  W.  273) 

219,  222,  245,  262,  324,  352,  353 

Biddle  v.  City  of  Terrell   (82  Tex.  335)    (18  S.  W.  691) 63 

Bigham  v.  Clubb   (95  S.  W.  675)    (42  T.  C.  A.  312) 689 

Bingham  et  al.  v.  Matthews  (86  S.  W.  781)   (39  T.  C.  A.  41) 

207,  209,  210,  234,  260 

Bingham  et  al.  v.  Matthews  (12  T.  C.  A.  772) 207,  209,  210,  234,  260 

Bird  V.  Perkins  (33  Mich.  28)    451 

Blackstone  v.  Miller   (188  U.   S.   206) 358 

Blair  v.  Guaranty  Savings,  Loan   &   Investment   Co.    (118   S.   W. 

608) 210,  332 

Bland  v.  Orr  (90  Tex.  492)    (39  S.  W.   558) 238 

Blanton   v.    Nunley    (119    S.   W.    881) 210,  332 

Blessings  v.  City  of  Galveston  (42  Tex.  642) 320 

Bluitt  V.  State  (121  S.  W.  168)    691 

Board  v.  Texas  &  Pacific  R.  W.  Co.  et  al.   (46  Tex.  317) 207 

Boardman   v.   Beckwith    (18   Iowa  292) 480 

Boesch  V.  Byrom  (83  S.  W.  18)   (37  T.  C.  A.  35) 472 

Bollinger  v.  Chouteau  (20  Mo.  89) 209 

Bolton  V.  City  of  San  Antonio  (21  S.  W.  64) 323,  439 

Bond  V.  Garrison  (127  S.  W.  839)    488 

Bond  V.  Poindexter  (116  S.  W.  395) 653 

Boon  V.  Chamberlain  (82  Tex.  480)   (18  S.  W.  655) 503,  504 


Table  of  Cases.  729 

Borciages  v.  Higgins   (20  S.  W.  184,  726)    (1  T.  C.  A.  43) 

204,  265,  451,  674,  675 

Bordages  v.  Higgins  (19  S.  W.  448) 204,  265,  451,  674,  675 

Borden  et  al.  v.   City  of  Houston    (62   S.  W,   427)    (26   T.   C.  A. 

29)   217,  218,  230,  257 

Borden  v.  Houston  (2  Tex.  594,  611,  613) 311,  478 

Bowden  v.  Patterson   (111  S.  W.  182) 235 

Boyd  V.  Miller   (54  S.  W.  411)    (22  T.  C.  A.  165) 245 

Boydston  v.  Rockwall   (86  Tex.  234) 238 

Brady  v.  Brooks  (99  Tex.  366)   (89  S.  W.  1052) 663 

Brand  v.  City  of  San  Antonio  (37  S.  W.  340) 664,  665 

Branham  v.  Water  Co.   (67  Tex.  554)    44£| 

Brennan  v.  Bradshaw  (53  Tex.  330)   322,  451 

Brewing  Co.  v.  Hirsch  (78  Tex.  192)    230 

Bright   V.   Hewes    (18   La.   Ann.   666) 664 

Bristol  V.  Washington  County  (177  U.  S.  144) 45 

Broiles  v.  State  (68  S.  W.  685)    (44  T.  C.  A.  78) 419 

Brokel  v.  McKechnie  (69  Tex.  33)    (6  S.  W.  623) 223 

Brooks  V.  State   (58  S.  W.  1032) 312,  387,  476 

Brown  v.  City  of  Galveston  (97  Tex.  1)   (75  S.  W.  488)..., 420 

Brown  v.  City  of  Galveston  (Tex.  Sup.)   (75  S.  W.  495) 679 

Brown  v.  O'Brien  (33  S.  W.  267)    (11  T.  C.  A.  459) 490 

Brummer  v.  City  of  Galveston  (97  Tex.  93)    (76  S.  W.  429) 203 

Bryan  v.  Harvey  (11  Tex.  312)    485,  649 

Bryan  v.  Page   (51  Tex.  532) 238 

B.ryan  v.  S^undberg  (5  Tex.  423)    60,  311 

Brymer  v.  Taylor  (23  S.  W.  635)    (5  T.  C.  A.  103) '. 51 

Bryson  &  Hartgrove  v.  Boyce  (92  S.  W.  820)   (41  T.  C.  A.  415) 495 

Buck  V.  Miller  (22  Amer.  Eng.  Ency.  of  Law  747)   (62  Am.  St.  436) 

(37  L.  R.  A.  388)    (45  N.  E.  647) 357 

Bullitt  V.  Coryell  (85  S.  W.  482)    (38  T.  C.  A.  42) 301 

Bummel  v.  Mayor  of  Houston  (68  Tex.  10)   (2  S.  W.  740) .  .261,  309,  431 

Burbank  v.  People    (90  111.   554)    242 

Burnett  v.  Henderson   (21  Tex.   590) 478 

Burns  v.  Ledbetter  (54  Tex.  383) 296,  334 

Burton  Lumber  Co.  v.  City  of  Houston  (101  S.  W.  822)   (45  T.  C. 

A.  363) 250 

Butler  V.  Saginaw  County   (20  Mich.  22) 480 

Byrnes  v.  Sampson  (74  Tex.  79)   (11  S.  W.  1073) 230,  235 

Cage  V.  Nevill    (3   W.   Civ.   274) 318 

Calder   v.   Ramsey    (66    Tex.    218)     284 

Campbell  v.  Riviere   (22   S.  W.   993) 382 

Campbell  v.  Wiggins  (2  T.  C.  A.  1)   (20  S.  W.  730) 97,  371,  382 

Carr  v.  Miller  (123  S.  W.  1158) 254,  494,  665 

Carswell  v.  Habberzettle  (86  S.  W.  738)    (39  T.  C.  A.  493)    300 

Carswell  v.  Habberzettle  (87  S.  W.  911) 300 

Carter  v.  New  Orleans  (33  La.  An.  816)    131 


730  Taxation  in  Texas. 

Carter  v.  State   (76  S.  W.  437)    (45  Tex.  Crim.  A.  430) 693 

Cass  County  v.  Wilbarger  County  (60  S.  W.  988)   (25  T.  C.  A.  52) . .   456 

Cassiano  v.  Ursuline  Academy  (64  Tex.  673) 193,  280,  323,  343 

Cattle  Co.  V.  Faught  (69  Tex.  402)    (5  S.  W.  494) 94 

Cave  V.   City  of  Houston    (65   Tex.   619) 

203,   204,   258,   303,   431,   458,   477,   478,  481 

City  of  Austin  v.  Gas  Light  &  Coal  Co.   (7  S.  W.  200)    (69  Tex. 

180)    347 

City  of  Austin  vs.  Nalle  (120  S.  W.  996)    43,  675  • 

City  of  Austin  v.  Nalle  (85  Tex.  520)   (22  S.  W.  668,  960) 439 

City  of  Austin  v.  Ritz  (72  Tex.  391)    (9  S.  W.  884) ' 673 

City  of  Austin  v.  Walter  (68  Tex.  507)    219 

City  of  Brownwood  v.  Noel   (43  S.  W.  890) / 453 

City  of  Corpus  Christi  v.  Woessner  (58  Tex.  462) 63 

City  of  Corsicana  v.  Kerr  (35  S.  W.  794)   674 

City  Council  of  Crockett  v.  Board  of  Trustees  (98  S.  W.  889)    (44 

T.  C.  A.  428)   475 

City  of  Dallas  v.  Emerson  (36  S.  W.  304) 682 

City  of  Dallas  v.  Kruegel  (64  S.  W.  922)   (95  Tex.  43) 505 

City  of  Dallas  v.  Schultz   (27  S.  W.  292) 673 

City  of  Dallas  v.  Western  Electric  Co.   (83  Tex.  243) 241 

City  of  Dallas  v.  Young  (28  S.  W.  1036)    242 

City  of  Denison  v.  Foster  (90  Tex.  22)    (36  S.  W.  401) 66,  664 

City  of  Denison  v.  Foster    (28  S.  W.   1052)    -. .  .66,  664 

City  of  El  Paso  v.  Ashford  (3  Tex.  378)    (22  S.  W.  177) 664 

City  of  Fort  Worth  v.  Boulware  (62  S.  W.  928)    (26  T.  C.  A.  76) . .   304 
City  of  Galveston  v.  J.  M.  Guffey  Petroleum  Oil  Co.    (113  S.  W. 

587)    364 

City  of  Galveston  v.  Loonie  (54  Tex.  525) 449 

City  of  Galveston  v.  Posnainsky  (65  Tex.  118)    673 

City  of  Galveston  v.  iSydnor  (39  Tex.  236) 316 

City  of  Georgetown  v.  Jones   (73  S.  W.  22)    (31  T.  C.  A.  623) 311 

City  of  Henrietta  v.  ESustis  (87  Tex.  14)   (26  S.  W.  619) 

78,  203,  204,  213,  261,  262,  292,  456 

City  of  Houston  v.  Bartlett  (29  T.  C.  A.  27)    (68  S.  W.  730) 303 

City  of  Houston  v.  Dooley  (89  S.  W.  777)   (40  T.  C.  A.  371) 454 

City  of  Houston  v.  Feeser   (76  Tex.  365) 314 

City  of  Houston  v.  Stewart  (90  S.  W.  53)    (40  T.  C.  A.  499)    (99 

Tex.  67)   133,  172,  243,  244,  308,  309,  430,  499,  664,  681 

City  of  Houston  v.  Stewart  (87  S.  W.  665)    

133,  172,  243,  244,  308,  309,  430,  499,  664,  681 

City  of  Houston  v.  Walsh  (27  T.  C.  A.  121)   (66  S.  W.  106 252,  276 

City  of  Laredo  v.  Lowry  (20  S.  W.  89)    (4  'App.  C.  C,  Sec.  320) 

306,  389,  421 

City  of  Louisville  v.  Anderson  (79  Ky.  334) 314,  315 

City  of  Louisville  v.  Johnson   (24  S.  W.  875) 242 

City  of  Marlin  v.  Green  (78  S.  W.  705)   (34  T.  C.  A.  421) 273,  352 


Table  of  Cases.  731 

City  of  Marshall  v.  Snediker  (25  Tex.  471) 315 

City  of  Marshall  v.  State  Bank  (127  S.  W.  1083) 373 

City  of  Newport  v.  Ringo  (10  S.  W.  2) .314,  315,  316 

City  of  Paris  v.  Brenneman  (126  S.  W.  58) 677 

City  of  Rockland  v.  Aimer  (24  Atl.  949)    48 

City  of  San  Antonio  v.  Berry  (48  S.  W.  496)    (92  Tex.  319) 

64,  222,  247,  262,  330,  353,  454 

City  of  San  Antonio  v.  Campbell   (56  S.  W.  130) 656 

City  of  San  Antonio  v.  Hoefling  (39  S.  W.  918)    (90  Tex.  511) 

175,  178,  183 

City  of  San  Antonio  v.  Raley  (32  S.  W.  180)   .  .64,  88,  131,  153,  480,  665 
City  of  San  Antonio  v.   Routledge    (102   S.  W.   756)    (46  T.   C.  A. 

196)    261 

City  of  San  Antonio  v.  Schneider  (37  -S.  W.  767) 437,  457 

City  of  San  Antonio  v.  Seeley  (57  S.  W.  688)   343,  344 

City  of  Sherman  v.  Langham  (40  S.  W.  140)   (92  Tex.  13) 453 

City  of  Sherman  v.  Smith  (35  S.  W.  294)  12  T.  C.  A.  580) 64 

City  of  Sherman  v.  Williams  (19  S.  W.  606)    (84  Tex.  421) 432 

City  of  Terrell  v.  Dissaint  (71  Tex.  770)    (9  S.  W.  593) 63,  430,  431 

City  of  Texarkana  v.  Talbot  (26  S.  W.  451)    (7  T.  C.  A.  202) 673 

City  of  Tyler  v.  Coker  (124  S.  W.  729) 378 

City  of  Tyler  v.  Tyler  Building  and  Loan  Ass'n  (86  S.  W.  750) .. . 

309,  323,  324 

City  of  Tyler  v.  Tyler  Building  &  Loan  Ass'n  (98  Tex.  69)   (81  S. 

W.  2)    309,  323,  324 

City  of  Tyler   v.   Tyler  Building  &   Loan   Ass'n    (82    S.   W.    1066) 

(11   Tex.   48)    309,   323,  324 

City  of  Waxahachie  v.   Conner   (35   S.  W.   692) 673 

City  of  Waco  v.  Prather  (37  S.  W.  312)    673 

City  of  Ysleta  v.  Lowenstein   (35  S.  W.  444) 649 

Chisholm  v.  Adams   (10  S.  W.  336)    (11  Tex.  678) 94,  173,  183,  225 

Claiborne  v.  Elkins  (79  Tex.  380,  280)    (15  S.  W.  395) 283,  488 

Clampitt  V.  Johnson  (42  S.  W.  866)    (17  T.  C.  A.  281) 359 

Clark  V.  Elmendorf  (78  S.  W.  538)    50 

Clarke  v.  Thompson  (47  111.  25)   (95  Am.  Dec.  475) 255 

Clawson  Lumber  Co.  v.  Jones  (49  S.  W.  909)   (20  T.  C.  A.  208) 180 

Clayton  v.   Rhem    (67   Tex.   52)    284 

Clegg  V.  Galveston  Co.  (1  S.  W.  Civ.  62)   (1  App.  C,  Sec.  60) 

49,   242,  250 

Clegg  V.  State  (42  Tex.  608,  609) 

43,  53,  79,  81,  117,  127,  129,  132,  133,  219,  242,  257,  303,  482 

Cockrell  v.  State  (55  S.  W.  579)    (24  T.  C.  A.  568) 221 

Coe  V.  Errol    (116  U.   S.  517)    45 

Collins  V.  Ferguson  (56  S.  W.  225)   (22  T.  C.  A.  552).  .247,  266,  331,  353 

Commissioners'  Court  v.  Perkins  (86  Tex.  348)   (24  S.  W.  794) 169 

Commonwealth  v.  Erie  R.  Co.  (98  Pa.  St.  133) 483 


732  Taxation  in  Texas. 

Conklin  v.  City  of  El  Paso  (44  S.  W.  879) 

57,  65,  91,  117,  222,  246,  321,  322,  323,  324,  331,  455,  471,  484 

Connor  v.  City  of  Waxahachie  (13  S.  W.  30) 90 

Continental  Land  &  Cattle  Co.  v.  Board  (16  S.  W.  312)    (80  Tex. 

489)    306 

Conway  v.  Cable  (37  111.  §2)   482 

Coogill  V.  Long  (15  111.  202)    57 

Cook  V.  De  la  Garza  (13  Tex.  431) 265 

Cook  V.  G.  H.  &  S.  A.  Ry.  Co.  (24  S.  W.  544)    (5  T.  C.  A.  644) 

169,  321,  382 

Coons  V.  Throckmorton  (25  Ark.  60)    237 

Cooper  Grocery  Co.  v.  City  of  Waco  (71  S.  W.  619)    (30  T.  C.  A. 

623)    48,  137,  187 

Cooper  V.  Savannah  (4  Ga.  68)  59 

Cordray  v.  Neuhaus  (61  S.  W.  415)  (25  T.  C.  A.  247) 268,  458,  665 

Cordray  v.  State  (55  Tex.  141)   650,  651 

County  of  Anderson  v.  John  W.  Kennedy  (58  Tex.  617) 380 

Court  V.  O'Connor  (65  Tex.  334)   87,  94,  152,  362 

Covington  v.  Bass  (Tenn.)   (12  S.  W.  1033) 664 

Covington  v.  Boyle   (6  Bush  [Ky.]  204) 296 

Cowen  V.  McCutcheon   (43  Miss.  207)    480 

Crawford  v.  McDonald  (88  Tex.  626)    (33  S.  W.  325) 209 

Cresswell  Ranch  &  Cattle  Co.  v.  Roberts  County  (27  S.  W.  737) .  .65,  69 
Crosby  v.  Bannowsky   (29  T.  C.  A.  455)    (69  S.  W.  212)    (95  Tex. 

451)    (68  S.  W.  47) 54,  252,  259,  265,  270 

Crosby  v.  Terry  (41  T.  C.  A.  594)    (91  S.  W.  652) .  .208,  229,  260,  289,  324 

Crosley  v.  Hutton  (98  Mo.  196)   (11  S.  W.  613) 209 

Cruger  v.  Gennuth  (3  Wilson  Civ.  Cases,  Sec.  24) 300,  304 

Crumbley  v.  Busse  (32  S.  W.  438)   (11  T.  C.  A.  319) 193,  298,  489 

Crystal  City  &  U.  R.  Co.  v.  Isbell  (126  S.  W.  47) 185 

Cummins  v.  Gaston  (109  S.  W.  476) 474 

Dallas  Elect.  St.  Ry.  Co.  v.  State  (120  S.  W.  997) 405 

Dallas  St.  Ry.  Co.  v.  City  of  Dallas  (95  Tex.  268)  (66  S.  W.  835)  610 
Dallas  Title  &  Trust  Co.  v.  City  of  Oak  Cliff  (27  S.  W.  1036)   (8  T. 

C.  A.  217)   131,  137,  450,  480 

Daugherty  v.  Thompson  (71  Tex.  192)  (9  S.  W.  99) 85,  86,  347,  349 

Davidson  v.  New  Orleans   (96  U.  S.  97)    46 

Davie's  Ex'rs  v.  City  of  Galveston  (41  S.  W.  145)   (16  T.  C.  A.  13)  307 

Davis  V.  Burnett  (77  Tex.  3)   (13  S.  W.  613) 321,  349 

Davis  V.  Burney    (58    Tex.    569)    '. 54 

Davis  V.  Fames  (26  Tex.  296) 284 

Davis  V.  Hurst  (14  S.  W.  610)    492 

Dawson  v.  Ward  (71  Tex.  72)  (9  S.  W.  106) 61,  193,  194,  285,  292 

Dean  v.  Lufkin  (54  Tex.  265)  (63  Tex.  437).  .54,  60,  61,  70,  309,  432,  431 

Dean  v.  State   (54  Tex.  313) 478,  651 

Deen  v.  Wills  (21  Tex.  647)    310 

De  Treville  v.  Shaall   (98  U.  S.  517) 242 


Table  of  Cases.  733 

Devine  v.  McOullooli  15  Tex.  488,  491,  448).  .192,  193,  201,  243,  280,  284 

Dodd  et  al.  v.  the  City  of  Hartford  (25  Conn.  232) 52 

Dodge  V.  Emmons   (34  Kan.  732)    (9  Pac.  951) 182 

Donnebaum  v.  Tinsley  (54  Tex.  362) 267 

Downes  v.  State  (3  S.  W.  242)    (22  T.  Grim.  A.  393) 373 

Dows  V.  City  of  Chicago   (11  Wallace  108) 52 

Duck  V.  Peeler  (74  Tex.  268)   (11  S.  W.  1111) 173,  184,  249 

Dudley  v.  Little  (2  Hammond  509) 293 

Dunn  V.  Taylor  (94  S.  W.  347)   (42  T.  C.  A.  241) 254^  255,  501 

Dutton  V.  Thompson  (85  Tex.  115)    (19  S.  W.  1026) .- 305 

Dwyer  v.  Hackworth  (57  Tex.  245)    433 

Dyer  v.  City  of  Brenham  (65  Tex.  526)    63 

Earle  v.  City  of  Henrietta  (41  S.  W.  728) 282 

Earle  v.  City  of  Henrietta  (91  Tex.  301)    (43  S.  W.  15) 245,  450 

Earnest  v.  Glaser  (74  S.  W.  605)  (7  Tex.  712)  (32  T.  C.  A.  378) 

232,  238,  255 

Baston  v.  Savery   (44  Iowa  656)    57 

Edmonds  v.  City  of  San  Antonio  (36  S.  W.  495)   (14  T.  C.  A.  155) 

339,  344 

Edmondson  v.  City  of  Galveston   (53  Tex.  157,  161) 

127,  129,  132,  257,  303,  477,  479 

Edwards  v.  Irvin  (45  S.  W.  1026)    301 

Edwards  v.  Morten  (92  Tex.  152)    (46  S.  W.  792) 454 

Edwards  v.  Sims  (19  Pac.  710)   (40  Kan.  235) 132 

Eels  V.  Blair  (60  S.  W.  462) 267 

Egan  V.  State  (68  S.  W.  273) 388,  419 

El  Paso  V.  Conlkling  (44  S.  W.  988)    (91  Tex.  537) 433 

El  Paso  V.  Ruckman  (46  ,S.  W.  27) 434 

Engelke  v.  Schlender  (12  S.  W.  999)   (75  Tex.  559) 84,  90,  100,  373 

Eustis  V.  City  of  Henrietta  {90  Tex.  468)    (39  S.  W.  567) 

97,  131,  136,  138,  139,  141,  201,  288,  313,  325,  457 

Eustis  V.  City  of  Henrietta  (91  Tex.  325)  (43  S.  W.  259) 246,  321 

Evans  V.  State  (36  Tex.  323) 478 

Ewing  V.  Helm  (13  How.  23)   (13  Serg.  &  Rawle  151) 285 

Ex  parte  Jones  (43  S.  W.  513)  (38  T.  Crim.  A.  482) 385,  386,  387 

Ex  parte  Overstreet  (46  S.  W.  825)    (39  T.  Crim.  A.  474) 386 

Ex  parte  Terrell   (48  S.  W.  504)    (40  T.  Crim.  A.  28) 425 

Ex  parte  Yeger   (8  Wall.  85) 483 

Fahey  v.  State  (27  T.  Crim.  A.  146)    (11  S.  W.  108) 386 

Fales  V.  Wadsworth  (23  Me.  553) 480 

Fant  V.  Brannin    (2  U.  R.   C.   323) 266 

Faris  v.  Simpson   (69   S.  W.  1029) 265 

Farmer  v.  State  (94  Tex.  232)    145 

Ferris  v.  Kimble  (12  S.  W.  689)   (75  Tex.  476) 90,  94,  184,  456 

Figures  v.  State  (99  S.  W.  412) 250,  313 

Finn  v.  Haynes   (37  Mich.  63) 482 


734  Taxation  in  Texas. 

Fire  Ass'n  of  Philadelphia  v.  Love  (108  S.  W.  810)    (101  Tex.  376) 

534,  535 

Fire  Ass'n  of  Philadelphia  v.  Love   (108  S.  W.  158) 534,  535 

First  Nat.  Bank  of  Lampasas  v.  City  of  Lampasas    (33  T.   C.  A. 

530)    (78   S.  W.   42)    368 

Fitch  V.  Boyer  (51  Tex.  344)    252 

Flanagan  v.  Boggess  (46  Tex.  331)   193,  496 

Flanniken  v.  Neal  (67  Tex.  629)   (4  S.  W.  212) 267 

Flemming  v.  Powell    (2  Tex.  225)    267 

Focke  V.  Garcia  (Tex.  Civ.  App.)  (41  S.  W.  187)   282 

Foote  V.  Sewell   (81   Tex.   659)    230 

Ft.  Worth  V.  Davis   (57   Tex.  225) 433-434 

Francis  Bros.  v.  Robinson  (89  S.  W.  803)   (40  T.  C.  A.  328) 260 

Free  v.  Scarborough  (8  S.  W.  490)    (70  Tex.  672) 60,  61,  69,  70 

Frence  v.  State  (42  T.  Crim.  A.  222)    (58  S.  W.  1015) 422 

French  Piano  Co.  v.  City  of  Dallas   (2  Tex.  261)    (61  S.  W.  942) 

355,  357,  362 

French  v.  Edwards   (13  Wall.  506)    57 

French  v.  Grenet  (57  Tex.  273)    195,  298 

French  v.  Olive  (3  S.  W.  568)    (67  Tex.  400) 491 

Frosch  V.  City  of  Galveston  (11  S.  W.  402)    (73  Tex.  409) 449 

Gaar,  Scott  &  Co.  v.  Shannon  (115  S.  W.  361) 611 

Galbraith  v.  State   (26  S.  W.  502)    (33  T.  Crim.  A.  331) 90 

Gale  V.  Mead  (2  Denio  160) ' 57 

Galveston  v.  Mennard   (23  Tex.  408) 500 

Galveston  v.  Sydnor   (39  Tex.  241) 314,  315 

Galveston  City  Co.  v.  Galveston  (56  Tex.  486) 307,  317 

Galveston  County   v.   Galveston   Gas  Co.    (72   Tex.    509,   557)    (10 

S.  W.  583,  587) 90,  173,  315,  609,  648 

Galveston  County  v.  Gorham   (49  Tex.  301) 315,  316 

Galveston  Co.  v.  Wharf  Co.   (10  S.  W.  587)    (72  Tex.  557) 173 

Galveston  Gas  Co.  v.  County  of  Galveston   (54  Tex.  237) 317 

Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Davidson  (93  S.  W.  436) 211,  521 

Galveston  &  W.  Ry.  Co.  v.  City  of  Galveston    (33  T.  C.  A.  384) 

(77    S.    W.    269)     382 

Galveston  &  W.  Ry.  Co.  v.  City  of  Galveston   (74  S.  W.  539)    (96 

Tex.  520)    217,  218,  476,  484 

Galveston  Wharf  Co.  v.  Galveston  (63  Tex.  23,  13) 347,  348 

Gardenshire  v.  Mitchell  (21  Kan.  83)   483 

Garvey  v.  State  (88  S.  W.  873) 229,  235 

Gas  Company  v.  Galveston  County  (54  Tex.  2)   (54  Tex.  287).. 315,  320 

Gearhart  v.  Dixon  (1  Pa.  St.  224)    57 

Geid  V.  State   (21  S.  W.  190)    (31  T.  Crim.  A.  514) 434 

George  v.  Dean  (47  Tex.  73) 43,  58,  81,  82,  153,  159,  320,  322,  361 

Gerry  v.  Stoneham   (1  Allen  319)    482 

Gibbs  V.  Gale  (7  Md.  76)   480 

Gibbs  V.  Scales  (118  S.  W.  189) 210,  236,  255,  262,  666 


Table  of  Cases.  735 

Gillaspie  v.  Murray  (66  S.  W.  252)    (27  T.  C.  A.  580)..! 487 

Gillespie  v.  Gaston  (4  S.  W.  248)  (67  Tex.  599) 100,  371 

Gillespie  v.  Gulf  C.  &  S.  F.  Ry.  Co.   (18  S.  W.  474) 383 

Gillette  v.  Webster   (15  Ohio  623) 293 

Gilmore  v.  Lampman  (Minn.)   (90  N.  W.  1113)   (91  Am.  St.  376) ...  237 

Glasscock  v.  T.  P.  Hughes  (55  Tex.  461)    249 

Gould  V.  'Oity  of  Paris  (4  S.  W.  650)    (68  Tex.  512) 430,  439 

Grace  v.  City  of  Bonham  (63  S.  W.  158)    (26  T.  C.  A.  161) 

138,  215,  247,  456 

Graham  v.  City  of  Greenville  (2  S.  W.  742)   (67  Tex.  63).. 322,  451,  4i57 

Graham  v.  Lasater   (26  S.  W.  472) 183,  184 

Graves  v.  Bullen  (115  S.  W.  1177)    310,  654 

Graves  Co.  v.  First  Nat'l  Bank  (56  S.  W.  16) 315 

Greenlaw  v.  City  of  Dallas  (75  S.  W.  812)    (33  T.  C.  A.  100).. 503,  504 

Greer  v.  Howell  (64  Tex.  688)   56,  194,  201,  449 

Greer  v.   Robertson    (30   T.  C.   A.   236)    (70   S.   W.   345) 

207,  255,  260,  266,  501 

Griffin  v.  Heard  (78  Tex.  607)   (14  S.  W.  892) 84,  100,  322,  373 

Guerguin  v.  City  of  San  Antonio   (50  S.  W.  141)    (19  T.  C.  A.  98)  ' 

128,  130,  133,  256,  334 

Gulf  C.  &  S.  F.  Ry.  Co.  v.  Poindexter  (7  S.  W.  316)   (70  Tex.  98) 

224,  243 

Gutta  Percha  &  Rubber  Mfg.  Co.  v.  City  of  Cleburne  (107  S.  W. 

157)    456 

Hadley  v.  Tankersley  (8  Tex.  12)    192,  284 

Hairston  v.  State  (36  Crim.  A.  470)    (37  S.  W.  858) 419 

Hairston  v.  Stinson   (13  Ared.  479) 132 

Halbert  v.  Brown   (9  T.  C.  A.  335)    (31  S.  W.  535) 489 

Hall  V.  Hall    (1   Mass.   101)    310 

Hall  V.  Houston  &  Texas  Central  Ry.  Co.  (39  Tex.  286) 470 

Hall  V.  Miller  (110  S.  W.  165)    363,  365 

Hall  V.  Miller  (115  S.  W.  1168) 363,  365 

Hamilton   v.   President,   etc.    (24  111.   22) 451 

Hammons  v.  Cleer   (127  S.  W.  889) 488 

barber  v.  Dyches   (14  S.  W.  580) ^ 391 

Hardesty  v.   Fleming   (57   Tex.   400) 94,   316,    317,   359,  361 

Hardy  v.  Beaty  (31  Am.  S.  80)    (84  Tex.  562)    (19  S.  W.  778) 237 

Harle  v.  Langdon's  Heirs   (60   Tex.   555) 290 

Harrington  v.  Galveston  County   (1  App.  Civ.,  Sec.  794) 482,  485 

Harris  v.  City  of  Houston  (52  S.  W.  653)    (21  T.  C.  A.  432)  . . .  .133,  221 

Harris  v.  Hill  (117  S.  W.  907)    236 

Harris  County  v.  Boyd  (7  S.  W.  713)    (70  Tex.  237) 339,  346 

Harrison  v.  Vines  (46  Tex.  15) 320,  322,  369 

Hart  V.  Plum   (14  Cal.  155) 57 

Haskins  v.  Wallet   (63   Tex.   214) 265,  493 

Hatchell  v.  Conner   (30  Tex.  104) 193,  196 


736  Taxation  in  Texas. 


Haynes  v.  State  (99  S.  W.  405)  (44  T.  C.  A.  492) 

88,  48,  122,  144,  140,  187,  291 

Hayes  v.  Taylor  (43  S.  W.  314)  (17  T.  C.  A.  449) 353,  351 

Heirs  of  Logan  v.  Pierce   (66  Tex.  126)    (18  S.  W.   343) 267 

Heller  v.  City  of  Alvarado  (20  S.  W.  1003)   (1  T.  C.  A.  409) 391 

Henderson  v.  White  (5  S.  W.  374)  (69  Tex.  103) .  .117,  190,  195,  265,  286 

Henry   v.    Horstick    (9   Watts    412) 296 

Herman  v.  Likens  (39  S.  W.  282)    (90  Tex.  449) 282 

Hernandez  v.  City  of  San  Antonio  (39  S.  W.  1022)    (15  T.  C.  A. 

299)    46,  89,  136,  497,  500 

Herndon   v.   Rice    (21    Tex.    455) 295 

Hicks  V.  Porter  (85  S.  W.  437)  ,  (38  T.  C.  A.  334) 261 

Higgins  V.  Bordages   (28  S.  W.  352)    (88  Tex.  460) 

252,    267,    352,    452,    680 

'  Higgins  V.  Bordages  (31  S.  W.  52,  803) 252,  267,  352,  452,  680 

Higgins  V.  Bordages  (53  Am.  St.  770) 680 

Hill  V.  Wolf   (28  Iowa  577) 57 

Hilman  v.  Faison   (57  S.  W.  920)    (23  T.  C.  A.  398) 472 

Hindes  v.  State  (67  S.  W.  467)    (68  T.  C.  A.  521) 350 

Hirshfleld  v.  City  of  Dallas   (15   S.  W.  124)    (4  App.   C.   C,   Sec. 

177) 389,  421 

Hoefling  v.  City  of  San  Antonio  (20  ;S.  W.  86)  (15  T.  C.  A.  257)  (84 

Tex.  228)    182,  183,  385,  388,  389,  421 

Hoefling  v.  City  of  San  Antonio  (38  S.  W.  1127)   (85  Tex.  229) 

182,  183,  385,  388,  389,  421 

Hoehn  v.  House  (31  S.  W.  83) 489 

Hoencke  v.  Lomax  (119  S.  W.  842) 494 

Holly  V.  Simmons  (99  Tex.  230)    (89  S.  W.  776) 454 

Hollywood  V.  Wellhausen  (68  S.  W.  329)   (28  T.  C.  A.  541)   (4  Tex. 

965) , 207,  210,  214,  234,  259,  260 

Holstein  v.  Adams  (72  Tex.  485)  (10  S.  W.  560) 298 

Homes  v.  City  of  Henrietta  (41  S.  W.  728) 282 

Horan  v.  Wahrenberger   (9  Tex.  313) 294 

Hosner  v.  De Young   (1   Tex.   764) ^ 3#1 

House  V.  City  of  Dallas  (96  Tex.  594)   (74  S.  W.  901) 652,  646 

House  V.  Stone  (64  Tex.  680)   11,  109,  193,  196,  298 

Houssels  V.  Taylor  (58  S.  W.  191)    (24  T.  C.  A.  72).... 259,  268,  353 

Houston  V.  Washington  (41  S.  W.  135)   (16  T.  C.  A.  504) 201 

Houston  County  v.  Dwyer   (59   Tex.  113) 649,  650 

H.  E.  &  W.  T.  Co.  V.  State  (93  S.  W.  462) 521 

H.  &  T.  C.  Ry.  Co.  V.  State   (5  Tex.  290)    (51  Am.  Dec.  769).. 86,  290 

H.  &  T.  C.  Ry.  Co.  v.  State  (39  Tex.  148) 86,  29a 

H.  &  T.  C.  Ry.  Co.  V.  Travis  County  (4  Tex.  Law  Riev.  22) 500 

Howard  v.  Houston   (59  Tex.  76) 204,  213 

Howard  v.  North  (5  Tex.  290,  317) 294 

Howard  v.  Smith  (38  S.  W.  15) 440 

Hubbard  v.  Arnold  (2  U.  R.  C.  327) 282 


Table  of  Cases.  737 

Huffman  v.  State  (115  S.  W.  578)    (55  T.  Crim.  A.  144) 424 

Hull  V.  Woods   (14  T.  C.  A.  590)    (38  S.  W;  256) 490 

Humphrey   v.    Pegues    (16    Wall.    249) 381 

Hunter  v.  Hodgson  (95  S.  W.  637) 50 

Hunter  v.  Malone   (108  S.  W.  709) 495 

Hutchinson  v.  Patching  (126  S.  W.  1107) 475 

Hutcheson   v.    Storrie   (92   Tex.    685) 681 

Hutchison  v.  Storrie  (48  S.  W.  785) 44 

lams  V.  Root  (Tex.  Civ.  App.)    (55   S.  W.  412) 237 

Insurance  Co.  v.  Roy    (50  Tex.  511) 481 

International  &  G.  N.  Ry.  Co.  v.  State   (12  S.  W.  685)    (75  Tex. 

356)    381 

I.  &  G.  N.  Ry.  Co.  V.  Anderson  County  (59  Tex.  654) 381 

I.  &  G.  N.  R.  Co.  V.  Coolidge  (62  S.  W.  1097)   (26  T.  C.  A.  595) ....   373 

I.  &  G.  N.  R.  Co.  V.  Smith  Co.  (54  Tex.  1) 178,  179,  320 

I.  &  G.  N.  Ry.  Co.  V.  Smith  County  (65  Tex.  21) 349 

I.  &  G.  N.  Ry.  Co.  V.  Stephens  (93  S.  W.  436) 521 

Jackson  v.  Deslonde  (1  U.  R.  C.  674,  691) 488 

Jackson  v.  Maddox   (117   S.  W.  185) 331 

Jackson  v.  State  (55  T.  Crim.  A.  557)   (117  S.  W.  818) 424 

James  v.  Turner  (78  Tex.  243) 664 

Jefferson  Iron  Co.  v.  Hart  (18  T.  C.  A.  525)   (45  S.  W.  321) 62 

Jeffrey's  Heirs  v.  Hand's  Heirs  (37  Ky.  89) 237 

Jeffries  v.  Clark   (22  Kan.  448) 138 

Jenkins  v.  DeWitt    (115   S.   W.   610) 475 

Jenks  V.  State  (29  Cr.  App.  233)    (15  S.  W.  815) 434 

Jennings  v.  Collins  (99  Mass.  29) 127 

Jergens  v.  Schiele    (61  Tex.   255) 353,  355 

Johnson  v.  Holland  (17  T.  C.  A.  210)   (43  S.  W.  71) 182 

Jones  V.  Driskell   (Mo.)    (7  S.  W.  Ill) 258 

Jones  V.  Pratt  (13  S.  W.  887)  ~  (77  Tex.  210) 265 

Jones  V.   Taylor    (7   Tex.   240) 276 

Jordan  v.  Brown  (94  S.  W.  399) 305 

Jordon  v.  City  of  Brenham  (57  Tex.  655) . . . : 127,  132,  257,  303 

Jordon  v.  Higgins   (63  Tex.  150) 195,  493 

Kansas  City  Life  Ins.  Co.  v.  Love  (109  S.  W.  863)  (101  Tex.  531) . .   536 

Keenan  v.  Slaughter  (108  S.  W.  703) 274 

Kelly  V.  Medlin  (26  Tex.  48) 192,  201,  241,  280,  284,  491 

Kenson  v.  Gage  (34  T.  C.  A.  547)    (79  S.  W.  605) 

136,  209,  233,  234,  252,  334 

Kerr  v.  City  of  Corsicana  (35  S.  W.  694) 674 

Kettering  v.  City  of  Jacksonville  (50  111.  41) 451 

Kettle  V.  City  of  Dallas  (35  T.  C.  A.  632)  (80  S.  W.  877)  .46,  677,  678,  680 

Kilpatrick  v.  Sisneros  (23  Tex.  113) 194,  280 

King  V.  Ireland  (68  Tex.  682)    (5  S.  W.  499) 647,  654 

King  V.  State  (100  S.  W.  387) 690 

Kinney  v.  Zimpleman  et  al.   (36  Tex.  554) 52,  470 


738  Taxation  in  Texas. 

Klein  v.  City  of  Dallas  (71  Tex.  280)    (8  S.  W.  90) 672,  673 

Labadie  v.  Dean  (47  Tex.  90,  102) 57,  69,  117,  153,  201,  290,  692 

Lamberida  v.  Barnum  (90  S.  W.  699) 201,  298,  487 

Lane  v.  Succession  of  March   (33  La.  554) 131 

Langley  v.  Smith   (126  S.  W.  660) 372 

Latimer  v.  Logwood   (27  S.  W.   960) 283 

League  v.  De Young   (2   Tex.  497) 311 

League  v.  State  (93  Tex.  353)    (56  S.  W.  263) .' 

207,  220,  223,  244,  246,  266,  272,  330,  478 

League  v.  State  (57  S.  W.  34) .  .207,  220,  223,  244,  246,  266,  272,  330,  478 

Lentz  V.  City  of  Dallas  (96  Tex.  258)    681 

Lewright  v.  Love  (95  Tex.  157)    (65  S.  W.  1089) 319,  388 

Light  &  Power  Co.  v.  Leferre  (93  Tex.  607) 219 

Limestone  v.  Rother  (48  Ala.  43) 57 

Link  V.  City  of  Houston  (59  S.  W.  566)   (94  Tex.  378) 

454,  498,  503,  504 

Link  V.  City  of  Houston  (60  S.  W.  664) 454,  498,  503,  504 

Linz  V.  City  of  Sherman   (62  S.  W.  71) 185 

Litney  v.  Marshall  (15  S.  W.  586)    (79  Tex.  513) 252 

Lively  v.  M.,  K.  &  T.  Ry.  Co.  (120  S.  W.  852) 591 

Llano  Cattle  Co.  v.  Faught  (5  S.  W.  494)    (69  Tex.  402) 625 

Llano  County  v.  Faught  (5  S.  W.  494) 620 

Lookhart  v.  City  of  Houston  (45  Tex.  322)    201,  207,  218,  249 

Lofton  V.  Miller  (118  S.  W.  911) .139,  494 

Logan's  Heirs  v.  Logan  (72  S.  W.  418)  (31  T.  C.  A.  295) 333 

Longenotti  v.  State  (2  S.  W.  620)    (22  T.  Crim.  A.  <61) 423 

Louder  v.  Schulter  (78  Tex.  103)    (14  S.  W.  205) 298 

Love  V.  State    (20  S.  W.   978)    (31   T.   Crim.  A.   469) 423 

Lovenberg  v.  City  of  Galveston  (42  S.  W.  1024)  (17  T.  C.  A.  162)  352 
Lufkin  V.  Galveston   (73  Tex.   343)    (11   S.  W.  342) 

48,  50,  208,  321,  449,  476 

Lufkin  V.  Galveston  (58  Tex.  545) 351 

Lufkin  V.  Galveston   (63  Tex.  437) 458,  459 

Lufkin  Land  &  Lumber  Co.  v.  Noble  (127  S.  W.  1093) 131,  185,  312 

Lum  V.  City  of  Bowie  (18  S.  W.  142) 322,  453 

Lumber  Co.  v.  Hancock  (70  Tex.  312)    (7  S.  W.  724).. 194 

Lutcher  v.  Allen  (95  S.  W.  572)    (43  T.  C.  A.  102) 495 

Maomanus  v.  Orkney  (91  Tex.  33)    (40  S.  W.  715) 282 

Maddox  v.  City  of  Rockport   (38  S.  W.  397) 132,  218,  226,  665 

Magnolia  Cattle  &  Land  Co.  v.  Love  (21  S.  W.  574)  (2  T.  C.  A.  385)  625 

Mann  v.  State  (18  T.  C.  A.  701)   (46  S.  W.  652) 222 

Mariposa  Land  &  Cattle  Co.  v.  Sullivan   (27  S.  W.  773) 489 

Marshall   v.   Snediker   (25   Tex.   472) 314 

Martin  v.  McDiarmid  (17  S.  W.  877) 60,  450 

Martin  v.  Robinson   (67  Tex.  369)    (3  S.  W.  550) 252 

Massie  v.  School  District  (105  S.  W.  821)  (47  T.  C.  A.  349).. 473,  474 
Mass.  Gen.  Hospital  v.  Somerville  (101  Mass.  319)  > 343 


Table  of  Cases.  739 

Masterson  v.  State  (17  T.  C.  A.  91,  94)    (42  S.  W.  1003) 

47,  102,  127,  205,  208,  244,  256,  257,  290 

Mateer  v.  Jones  (102  S.  W.  734) 48 

Mayor  v.  Baldwin  (29  Am.  Rep.  713)    (57  Ala.  61) 364 

McClennan  County  Co.  v.  Frost  (32  T.  C.  A.  617) 150 

McCombs  V.  City  of  Rockport  (14  T.  C.  A.  561) 

130,  131,  132,  133,  176,  225,  256,  258,  434,  445,  473,  477,  479 

McCormick  v.  Edwards  (69  Tex.  106)    (6  S.  W.  32) . .  .194,  201,  277,  291 

McCrary  v.  City  of  Comanche  (34  S.  W.  679) 453,  456,  258 

McCullough  V.   Maryland    (4  Wheat.   316)    45 

McDaniel  v.   Needham    (61   Tex.   274) 201 

McDonald  v.  Farmer  (56  S.  W.  555)    (23  T.  C.  A.  39) 169 

McDonough   v.    Cross    (40   Tex.    285) 295 

McFadden  v.  Longham   (58  Tex.  579) 48 

McKennon  v.  McGown   (Tex.  Sup.)    (11  S.  W.  532) 265 

McLennan  County  v.  Frost  (75  S.  W.  876) 150 

McLeod  V.  State   (16  S.  W.  216)    (33  T.  C.  A.  170) 420 

McMickle  v.  Rochelle  (125  S.  W.  74) 91,  138,  254 

McNeill  V.  City  of  Waco  (33  S.  W.  322)  (89  Tex.  83) 62,  438,  681 

McPhail  V.  Burris   (42  Tex.  146)    482 

Mellinger  v.  City  of  Houston   (68  Tex.  42)    (3  S.  W.  251) 

296,  485,  498,  499,  500,  501,  261 

Meredith  v.  Coker  (65  Tex.  31)   187,  284 

Merriman  v.  Blalack   (122   S.   W.   403) 494 

Meriwether  v.  Garrett   (102  U.  S.  472) 46 

Middleton  v.  Bulin  (18  Conn.  189) 80 

Miller  v.  Brownson   (50  Tex.  597) 298 

Miller  v.  Crawford  Independent  School  Dist.   (63  S.  W.  894)    (26 

T.  C.  A.  495) 223,  695 

Miller  v.  State   (69  S.  W.  522)    (44  T.  Grim,  99) 456 

Millican  v.  McNeil  (92  Tex.  400)   (49  S.  W.  219) 223 

Mills  Co.  V.  Lampasas  County  (90  Tex.  506)    (40  S.  W.  403) 238 

M.,  K.  &  T.  Ry.  Co.  v,  Hassell  (123  S.  W.  190) 590 

M.,  K.  &  T.  Ry.  Co.  v.  Kone  (122  S.  W.  424) 591 

M.,  K.  &  T.  Ry.  Co.  v.  Shannon  (100  Tex.  379)   (100  S.  W.  138).. 

.• 589,  590,  588,  587 

M.,  K.  &  T.  Ry.  Co.  v.  State  (93  S.  W.  462) 521 

Mitchell  Co.  v.  Bank  (91  Tex.  361)    (43  S.  W.  880) 45,  58,  432,  433 

Mock  V.  State   (11  Tex.  Grim.  A.  56) 90 

Montgomery  v.  Peach  River  Lumber  Co.  (117  S.  W.  1061) 346 

Moody  V.  Galveston  (50  S.  W.  482)    (21  T.  C.  A.  16^  . .  .176,  224,  322,  359 

Moore  v.  Foote  (32  Miss.  469) 247 

Moreland  v.  Atchison  (19  Tex.  303) 231 

Morgan  v.  Smith  (70  Tex.  637)   (8  S.  W.  528) 117,  160,  194,  277 

Morris  v.  Cummings  (91  Tex.  618)   (45  S.  W.  383) 320 

Morris  v.  Hastings  (7  S.  W.  649)   (70  Tex.  26) 290 


740  Taxation  in  Texas. 

Morris  v.  Lone  Star  Chapter  of  Masons   (68  Tex.  698)    (5  S.  W. 

519)    338,  346,  350 

Morris  v.  State  (47  Tex.  583)    645 

Morrison  v.  Loftin  (44  Tex.  23) 276 

Moses  v.  McFarlin  (2  U.  R.  C.  291) 282 

Moss  V.  Shear  (85  Am.  Dec.  97) Ill 

Muir's  Adm'rs  vs.  City  of  Bordstown  (Ky.)  (87  S.  W.  1096) 480 

Muller  V.  City  of  Denison  (21  S.  W.  391)   (1  T.  C.  A.  293) 459 

Mullinnix  v.  State   (60  S.  W.  768)    (42  T.  Crim.  A.  526) 388,  422 

Mumme  v.  McCloskey  (66  S.  W.  853)   (28  Tex.  C.  A.  83) 299,  318 

Munson  v.  Hallowell  (26  Tex.  475)    501 

Murchison  v.  White  (54  Tex.  78)    252 

Murdock  v.  Hlllyer  (45  Mo.  App.  287) 237 

Murphy  v.  Welder   (58  Tex.  235) 492 

Murphy  v.  Williams  (56  S.  W.  695) 247,  282 

Nalle  V.  City  of  Austin  (93  S.  W.  141)  (41  T.  C.  A.  423)  .51,  180,  455,  477 

Nalle  V.  City  of  Austin   (91  Tex.  424)    (44  S.  W.  66) 62,  178 

Nalle  V.  City  of  Austin   (56  S.  W.  954)    (23  T.  C.  A.  595) 180,  247 

Nalle  V.  City  of  Austin  (21  S.  W.  375) 51,  459 

Nalle  V.  City  of  Austin  (42  S.  W.  780) 204,  446 

Nat.  Bank  v.  Rogers  (51  Tex.  606) 361,  369 

Needham  v.  State  (103  S.  W.  857)   (51  T.  Crim.  A.  248) 418,  422,  427 

Nelson  v.  Edwards   (55  Tex.  389) 629,  656 

Netzorg  v.  Geren  (26  T.  C.  A.  119)   (62  S.  W.  791) 218,  230,  231,  298 

New  Orleans  v.  Stempel  (175  U.  S.  309) 45,  358 

Nichols  V.  State  (11  Tex.  C.  A.  327)    (32  S.  W.  452) 238 

Niday  v.  Cochran   (93  S.  W.  1027)    (42  T.  C.  A.  292) .' 291 

Noel  V.  City  of  San  Antonio  (33  S.  W.  263) 439 

Nolan  V.  San  Antonio  Ranch  Co.  (81  Tex.  315)   (16  S.  W,  1064) . .   362 

Norris  v.  City  of  Waco   (57   Tex.  635) 46,     47 

Norris  v.  W.  C.  Belcher  Land  Mortg.  Co.   (82  S.  W.  500) 477 

Norwood  V.  Baker  (172  U.  S.  269)    681 

Nunley  v.  Blanton  (126  S.  W.  1110) 210 

Oakland  v.  Whipple  (44  Cal.  303) 482 

Ochoa  V.  Miller  (59  Tex.  460) 305 

Ogden  V.  Bosse  (86  Tex.  344)    (24  S.  W.  798) 220,  244 

Old  Dominion  Steamship  Co.  v.  Virginia  (198  U.  S.  299)   (49  L.  ed. 

1059)    (25  Sup.  Ct.)    364 

Olliver  et  al  v.  Carsner   (39  Tex.  396) 470,    60 

Ollivier  v.  City  of  Houston  (54  S.  W.  940,  943)   (22  T.  C.  A.  55)   (93 

Tex.  201)    498,  503,  504 

Ollivier  v.  City  of  Houston   (41  T.  C.  A.  596) 498,  503,  504 

O'Neal  V.  State  (51  T.  Crim.  A.  100)  (100  S.  W.  919) 424 

Openshaw  v.  Richmeyer  (45  T.  C.  A.  508)   (102  S.  W.  467) 49 

Oppenheimer  v.  Reed   (32  S.  W.  325)    (11  T.  C.  A.  367) 434,  200 

Orange  Co.  v.  T.  &  N.  O.  Ry.  Co.   (35  T.  C.  A.  361)    (80  S.  W. 

670)    647 


Table  of  Cases.  741 

Orr  V.  State  (44  S.  W.  1102)    (39  T.  Crim.  A.  124) 425 

Osburn  v.  Robson  (13  Tex.  307)   293 

Ostrum  V.  City  of  San  Antonio  (71  S.  W.  304)    (30  T.  C.  A.  462) 

248,  307,  312 

Owen  V.  City  of  Navasota  (44  Tex.  522)    296 

Owens  V.  State  (112  S.  W.  1075)   (53  T.  Crim.  A.  105) 413 

Ozee  V.  City  of  Henrietta  (90  Tex.  334) 281,  283,  288,  290 

Palmer  v.  Hayes  (13  N.  E.  882)    (112  Ind.  290) 209 

Parker  v.  City  of  Jacksonville  (37  Fla.  352) 218 

Patton  V.   Minor   (125   S.  W.  6)    (117   S.  W.  920) 494 

Peareson  v.  Branch  (87  S.  W.  222) 207,  234,  259 

Pearson  v.  Flanagan   (52  Tex.  266)    265 

Peay,  Sheriff,  v.  E.  W.  Talbot  &  Bro.   (39  Tex.  335) 60 

Pendleton  v.  Ferguson  (99  Tex.  296)   (89  S.  W.  761) 49 

Penn  v.  City  of  Laredo  (26  S.  W.  636) 664,  665 

Penn.  Co.  v.  McCann  (31  L.  R.  A.  651)    (53  Ohio  St.  127) 480 

Pennoyer  v.  Neff  (24  L.  ed.  565)    (95  U.  S.  714) 230,-  237 

People  V.  Allen  (6  Wend.  486) 57 

People  V.  Hastings  (29  Cal.  449)   80 

People  V.  Pearson  (18  Pac.  424)   (76  Cal.  400) 237 

People's  Nat.  Bank  v.  City  of  Ennis  (50  S.  W.  633) 59,  445 

Perry  v.  Rockdale  (62  Tex.  454) 427,  433,  693 

Perry  v.  Whiting  (121  S.  W.  903) 212 

Peters  v.  Clements   (52  Tex.  140)    295 

Phillips  V.  City  of  Dallas   (3  App.  C.  C.  294) 673 

Piano  &  Organ  Co.  v.  City  of  Dallas  (61  S.  W.  942) 45 

Pierce   v.   Cambridge    (2    Cush.   611) 343 

Pillow  V.   Roberts    (13   How.   472) 241 

Pipkin  V.  Kaufman  (62  Tex.  545) 230 

Poe  V.  State  (72  Tex.  625)  (10  S.  W.  737) 648,  649 

Polk  V.  Rose  et  al.  (25  Md.  153)    294 

Pond  V.  Negus  (1  Desty  on  Taxation)   (3  Amer.  Dec.  131) 57 

Pons  V.  State   (49  Mich.  1) 483 

Pool  V.   Sanford    (52   Tex.   635)    48 

Poole  V.  State  (76  S.  W.  567)    (45  T.  Crim.  A.  348) 693 

Poteet  V.  State  (41  T.  Crim.  A.  268)   (53  S.  W.  869) 386,  387 

Potts  V.  State  (45  T.  Crim.  A.  45)    (74  iS.  W.  32) 418,  419 

.Pratt  V.   Jones    (64    Tex.    694) 193,  280 

President,  etc.,   v.   Thompson    (20   111.   200) 451 

Primm  v.  Fort  (23  Tex.  Civ.  A.  605)    (57  S.  W.  86) 370 

Producers'  Oil  Co.  v.  Stephens  (44  T.  C.  A.  327)   (99  S.  W.  157) . . 

211,  251,  424,  526 

Pullman  Car  Co.  v.  Pennsylvania  (141  U.  S.  18) 45 

Pullman  Palace  Car  Co.  v.  State  (64  Tex.  275) 385 

Raht  V.  State   (106  S.  W.  900) 662 

Railroad  Co.  v.  Commonwealth  (1  Burch  250) 80 

Railway  Co.  v.  City  of  Galveston  (8  Tex.  372)   (77  S.  W.  269) ....   133 


742  Taxation  in  Texas. 

Railway  Co.  v.  Gay  (86  Tex.  571)    (26  S.  W.  599) 501 

Railway  v.  Poindexter  (70  Tex.  98)   (7  S.  W.  316) 117,  193,  201 

Railway  v.  Ragsdale   (67  Tex.  27)    (2  S.  W.  515) 243 

Railway  v.  Scott   (28  S.  W.  458) 664 

Rainey  v.  State   (41  T.  Orim.  A.  254)    (53  S.  W.  882) 387,  386 

Raley  v.   Smith    (73   S.  W.  54) 664 

Ramsey  v.  State  (78  Tex.  602)   (14  S.  W.  793) 334 

Raymond  v.  Kibbe  (43  T.  C.  A.  209)    (95  S.  W.  727) 363 

Red  V.  Johnson  (53  Tex.  284)    317,  320,  344,  361 

Red  V.  Morris    (72  Tex.  554)    (10  S.  W.  681) 344 

Reynolds  Land  &  Cattle  Co.  v.  McCabe   (72  Tex.  57)    (12  S.  W. 

165)    473 

R.  G.  R.  R.  Co.  V.  Scanlan  (44  Tex.  649) 320,  477 

Rhomberg  v.  McLaren  (21  S.  W.  571)   (2  Tex.  C.  A.  391) 473,  695 

Rich  V.  Flonders   (29  N.  H.  304) '. 480 

Ring  V.  Williams  (13  T.  C.  A.  609)    (35  S.  W.  733) 45 

Rippstein  v.  Haynes  Medina  Valley  Ry.  Co.   (85  S.  W.  314) 609 

Ripy  V.  Redwater  Lumber  Co.   (106  S.  W.  733) 610 

Robbins  v.  State   (123  S.  W.  695) 427 

Robert  Lookhart  v.  City  of  Houston  (45  Tex.  317) 207,  224 

Robson  V.  Osborn   (13  Tex.  307)..  196,  201,  242,  280,  284,  297,  491,  496 

Rogers  v.  Moore  (97  S.  W.  685)  (100  Tex.  220) . .'. 266,  271,  289,  290 

Rogers  v.  Moore  (94  S.  W.  113) 266,  271,  289,  290 

Rosenberg  v.  Weekes  (67  Tex.  578)   (4  S.  W.  899) 

88,   89,   94,   321,   371,  478 

Ross  V.  Drouilhet  (80  S.  W.  243)    (34  T.  C.  A.  327).. 259,  260,  265,  271 

Roundtree  v.  City  of  Galveston   (42  Tex.  612,  626) 42,  672 

Rouse  V.  State  (54  S.  W.  32) 245 

Rucker  v.  Dailey  (66  Tex.  284)  (1  S.  W.  316) : .  503 

Rundell  v.  Lakey  (40  N.  Y.  513) 296,  300 

Russel  V.  Cage  (66  Tex.  428)   (1  S.  W.  270) 430 

Ryan  v.   State    (5  Neb.   276) 481 

Ryle  V.  Davidson   (116  S.  W.   823) -. 313 

Ryon  V.  Davis  (32  T.  C.  A.  500)   (75  S.  W.  59) 254,  266,  270,  331 

St.  Auditor  v.  Jackson  Co.   (65  Ala.  157) 57 

St.  Edward's  College  v.  Morris  (17  S.  W.  512)   (82  Tex.  1) 339,  345 

St.  Mary's  College  v.  Crowl   (10  Kan.  451-2) 344 

San  Antonio  &  A.  P.  Ry.  v.  Lester  (84  S.  W.  401) 694 

San  Antonio  &  A.  P.  Ry.  v.  Lester  (89  S.  W.  752)   (99  Tex.  214) . .   692 

San  Antonio  v.  Berry  (92  Tex.  320)   (48  S.  W.  496) 187,  352 

San  Antonio  v.  French  (80  Tex.  575) 664,  665 

San  Antonio  St.  Ry.  Co.  v.  City  of  San  Antonio   (54  S.  W.  907) 

(22  T.  C.  A.  341)    107,  181,  373 

San  Antonio  v.  Hoefling   (90   Tex.   513) , 175,  183 

Sanborn  v.  City  of  Amarillo  (42  T.  C.  A.  115)   (93  S.  W.  473). .   49,  521 

Sandmeyer  v.  Harris  (7  T.  C.  A.  515)   (27  S.  W.  284) 451 

Sansom  v.  Mercer  (68  Tex.  488)   (5  S.  W.  62) 220,  223 


Table  of  Cases.  743 

Savings  &  Loan  Ass'n  v.  Multnomah  Co.  (169  U.  S.  426) 45 

Scales  V.  Wren   (127  S.  W.   164) 210 

Scanlan  v.  Campbell  (22  T.  C.  A.  505)    (55  S.  W.  501) 222,  271 

Schaffer  v.  Davidson   (44  T.  C.  A.  100)    (97  S.  W.  858) 203,  291 

Schleicher  v.  Gatlin  (85  Tex.  270)    (20  S.  W.  120) • 

129,  132,  286,  298,  299,  487,  488 

School  Trustees  v.  Dow   (63  S.  W.  1027) 324 

Scollard  v.  City  of  Dallas  (42  S.  W.  640)    (16  T.  C.  A.  620) 

59,  88,  117,  137,  138,  140,  172,  185,  456 

Scott    V.    Solomon    (59    Tex.    593) 265 

Scott  V.  State   (47  T.  Crim.  A.  176)    (82  S.  W.  656) 418,  423 

Scudder  v.  Cox  (35  T.  C.  A.  416)   (80  S.  W.  872) 209 

Sellers  v.  Simpson  (115  S.  W.  888) 209,  210,  212,  494 

Selman   v.   Wolf    (27   Tex.   72)    454 

Sharpe  v.  Kellogg  (116  S.  W.  401) 494 

Shaw  V.  State  (43  Tex.  355)   • 650 

Sherman  v.  Crowley  (11  Johns.  R.  70) 310 

Sherrill  v.  Hewitt  (Sup.  13  N.  Y.) 246 

Showalter  v.  Brown  (35  Miss.  423) .80 

Silsbee  v.  Stockle  (7  N.  W.  160,  367)    (44  Mich.  561) 247 

Simpson  v.    Huff    (74    S.   W.   49). 253 

Slaughter  v.  City  of  Dallas  (103  S.  W.  218) 41,  134 

Slaughter  v.  City  of  Dallas  (107  S.  W.  48) 41,  134 

Smeich  v.  York  County  (68  Penn.  St.  439) 296 

Smith  V.  Estill   (87  Tex.  270)    (28  S.  W.  801) 305 

Snead  v.  State  (55  T.  Crim.  A.  583)    (117  S.  W.  983) 410 

Snearly  v.  State   (40  T.  Crim.  A.  507)    (52  S.  W.  547) 426 

Snowden  v.  Rush   (76  Tex.  197)    (13   S.  W.   189) 487 

Snyder  v.  School  District   (111  S.  W.  723) 474 

Solon  V.  State  (114  S.  W.  349)    (54  T.  C.  A.  261) 691 

Southwestern  T.   &  T.  Co.  v.  City  of  San  Antonio   (32  T.  C.  A. 

101)    (73  S.  W.  859)    609 

Southwick  V.  Southwick  (49  N.  Y.  510) 480 

State  V.  Austin  Club  (89  Tex.  20)    (33  S.  W.  113) 425 

State  V.  Baker   (49  Tex.   763)    i 

127,  129,  130,  132,  133,  160',  204,  257,  435,  436 

State  V.  Bremond  (38  Tex.  116) 53,  86,  88,  470 

State  V.  Cody  (120  S.  W.  267) 426 

State  V.  Colorado  Bridge  Co.   (75  S.  W.  818) 345 

State  V.  Farmer  (94  Tex.  232)    (57  S.  W.  84)    (Tex.  Sup.).. 79,  137,  261 

State  V.  Farmer  (59  S.  W.  541) 79,  137,  261 

State  V.  Fidelity  &  Deposit  Co.  of  Md.   (35  T.  C.  A.  214)    (80  S. 

W.  553)   45,  357,  358 

State  V.  Fulmore  (71  S.  W.  418)    64,  479 

State  V.  G.  H.  &  S.  A.  Ry.  Co.   (100  Tex.  153)    (97  S.  W.  71)....  524 

State  V.  Gibson  (27  T.  C.  A.  355)   (65  S.  W.  690) 504,  505 

State  V.  Hannibal  &  St.  J.  R.  Co.  (13  S.  W.  505)  (101  Mo.  136) 246 


744  Taxation  in  Texas. 

state  V.  Higgins  Oil  Co.   (116  S.  W.  617) 364 

State  V.  Jones  (5  Tex.  384) 360 

■State  V.  Kelley  (43  Tex.  667)   470 

State  V.  Lee   (37  Amer.  St.  649)    (11  N.  C.  681) 419 

State  V.  Mantooth  (49  S.  W.  683)    (20  T.  C.  A.  396) 221 

State  V.  Mayor,  etc.   (8  Vroom  39) 481 

State  V.  Middleton   Sureties    (57   Tex.   185) 645 

State  V.  M.,  K.  &  T.  Ry.  Co.  (100  S.  W.  146) 524,  525,  526 

State  V.  Quillen  (115  S.  W.  660) ».  .217,  250 

State  V.  St.  Louis  S.  W.  Ry.  Co.  (43  T.  C.  A.  533)  (96  S.  W.  69) .  .376,  377 

State  V.  Stephens  (4  Tex.  137) 420 

State  V.  Taylor  (72  Tex.  297)  (12  S.  W.  176) 349 

State  V.  Texas  &  P.  Ry.  Co.  (100  Tex.  279)  (98  S.  W.  834) 525 

State  V.  Trilling  (62  S.  W.  788) 213,  218 

State  V.  Unknown  Owner  (103  S.  W.  1116) 238 

State  V.  Waterville  Savings  Bank  (68  Me.  515) r. .,  483 

State  V.  Wells  (61  Tex.  562) 650 

State  V.  W.  U.  Tel.  Co.  (4  Nev.  338) 57 

State  V.  Wolfe  (51  S.  W.  657) 652,  660 

Stegall  V.  HufE  (54  Tex.  196) 230 

Stephens  v.  Texas  &  P.  Ry.  Co.  (100  Tex.  177)  (97  S.  W.  309) 525 

Stephenson  v.  Railway  Co.  (42  Tex.  162) 230 

Sterrett  v.  City  of  Houston  (14  Tex.  153) 219 

Stewart  v.  Kemp  (54  Tex.  248) 196,  294 

Stickney  v.  Higgins   (10  Ala.  106) 57 

Stone  V.  Tilley  (100  Tex.  487)    (101  S.  W.  201) ^  .51,  261 

Stone  V.  Tilley  (95  S.  W.  718) 51,  261 

Stoneham  v.  Bilby  (4^  T.  C.  A.  293)   (96  S.  W.  52) 237,  238 

Storrie  v.  Cortes  (90  Tex.  283)  (38  S.  W.  154)  (35  L.  R.  A.  666)  .218,  678 
Storrie  v.  Ho.  City  St.  Ry.  Co.   (46  S.  W.  796)    (92  Tex.  129)    (44 

L.  R.  A.  716) 680,  682 

Stringer  \.  Franklin  County  (123  S.  W.  1168) 48,  124,  125,  655,  666 

Stringer  v.  Holley  (105  S.  W.  1146)  124 

Sullivan  v.  Bitter  (113  S.  W.  193) 82,  181 

Swan  v.  State  (48  Tex.  120) 470,  650,  651 

Swenson  v.  McLaren  (2  T.  C.  A.  331)   (21  S.  W.  300) 225,  695 

Swope  V.  Mo.  Trust  Co.  (26  T.  C.  A.  133)  (62  S.  W.  947) 300 

Sydnor  v.  Roberts  (13  Tex.  598)   (65  Amer.  Dec.  84) 290 

Taffinder  v.  Merrell  (95  Tex.  95) 142 

Tafft  V.  Buffalo  (82  N.  Y.  202) 480 

Taliaferro  v.  Butler  (77  Tex.  578) 230 

Tallman  v.  White  (2  N.  Y.  66) 137 

Tappon  V.  Mer.  Nat'l  Bank  (19  Wall.  490) 45 

Tarbrough  v.  Moody  (106  S.  W.  891) 495 

Taylor  v.  Boyd  (63  Tex.  534)    (5  Tex.  Law  Rev.  202) 42,  241,  280 

Taylor  v.  Robinson  (10  S.  W.  245)   (72  Tex.  364) 350 

Taylor  v.  State  (81  S.  W.  933)  (47  Tex.  Crim.  App.  101) 694 


Table  of  Cases.  745 

Telfener  v.  Dillard  (70  Tex.  139)   (7  S.  W.  847) 89,  194,  487,  491 

Telfener  v.  Dillard  (9  S.  W.  847) 89,  194,  487,  491 

Terrell  v.  Dessaint  (71  Tex.  770)  (9  S.  W.  593) 433 

Terrell  v.  Martin  (64  Tex.  125) 192,  201,  280 

Texarkana  Water  Co.  v.  State  (35  S.  W.  788) 290 

Texas  Banking  &  Ins.  Co.  v.  State  (42  Tex.  636) 386 

Texas  Co.  v.  Stephens  (100'  Tex.  628)  (103  S.  W.  481) 211,  528 

Texas  Land  &  Cattle  Co.  v.  Hemphill  County  (61  S.  W.  333) 652 

T.  &  N.  O.  Ry.  Co.  v.  State  (97  S.  W.  142)  (43  T.  C.  A.  580) . . .  .313,  653 
Texas  &  Pacific  Ry.  Co.  v.  Harrison  County  (54  Tex.  124) 

60,  69,  150,  178,  179,  432,  471 

Texas  &  Pacific  Ry.  Co.  v.  Stephens  (93  S.  W.  436) 521 

Texas  Savings  &  R.  B.  Inv.  Assn.  v.  Pierre's  Heirs  (31  S.  W.  426) 

(10  T.  C.  A.  453) 241,  452 

Texas  Tram  &  Lumber  Co.  v.  Gum  (67  S.  W.  892)   (29  T.  C.  A.  1) .   487 

Texas  Trans.  Co.  v.  Boyd  (67  Tex.  153) 242 

Thomas  v.  Morse  (16  S.  W.  48)   (80  Tex.  291) 358 

Thompson  v.  Commonwealth  (81  Pa.  St.  314) 483 

Thomson  v.  Weisman  (98  Tex.  170)    (82  S.  W.  503) 249,  492 

Thornburgh  v.  City  of  Tyler  (16  T.  C.  A.  439)   (43  S.  W.  1054).  .52,  504 

Tisdale  v.  Town  of  Minonk  (46  111.  9) 451 

Toepperwein  v.  City  of  San  Antonio  (124  S.  W.  699) .  .212,  296,  301,  352 

Tomlinson  v.  Branch  (15  Wall.  460)   381 

Torbett  v.  City  of  Louisville  (7  Tex.  602)  (4  S.  W.  346) 314,  315 

Town  of  Decorah  v.  Gillis  (10  Iowa  234) 451 

Town  of  Elma  v.  Carney  (4  Wash.  420) 218 

Trade  v.  Benseman  (31  Tex.  277) 420 

Trammel  v.  Faught  (12  S.  W.  317)   (74  Tex.  557) 85,  345 

Traylor  v.  State  (46  S.  W.  81)   (19  T.  C.  A.  86) 304,  272 

Treadway  v.  Eastburn  (57  Tex.  209) 255 

Trinity  Church  v.  Boston  (118  Mass.  164) 343 

Trinity  v.  Polk  County  (58  Tex.  321) 55 

Troutman  v.  McCleskey  (7  T.  C.  A.  561)   (27  S.  W.  173) 320,  453 

Trust  Co.  V.  City  of  Oak  Cliff   (8  T.  C.  A.  217)    (27  S.  W.  1036) 

(81  C.  A.  220)   130,  203,  204,  359,  435,  436,  437 

Turner  v.  City  of  Houston  (21  T.  C.  A.  214)  (51  S.  W.  642)  .130,  133,  257 

Turner  v.  National  Cotton  Oil  Co.  (109  S.  W.  1115) 310 

Turner  v.  Smith  (119  S.  W.  922) 332,  333 

United  States  v.  Taylor  (104  U.  S.  216) 483 

Unknown  Owner  v.  State  (118  S.  W.  803) 225,  236 

Vieno  v.  Gibson  (21  S.  W.  1028)    (85  Tex.  432) 303 

Voorhies  v.  City  of  Houston  (70  Tex.  331)  (8  S.  W.  109) 431,  432 

Voorhies  v.  City  of  Houston  (7  S.  W.  679) 431,  432 

Wade  V.  State  (3  S.  W.  787)   (22  T.  Crim.  A.  629) 418 

Wagner  v.  Porter  (56  S.  W.  560) 312 

Wall  V.  Club  Land  &  Cattle  Co.  (88  S.  W.  535) 487 

Wallis  V.  Williams  (110  S.  W.  785) 690 


746  Taxation  in  Texas. 

Ward  V.  Marion  County  (26  T.  C.  A.  361)    (62  S.  W.  557) 646 

Warren  Co.  v.  Klein   (51  Miss.  807) 449 

Waters  v.  SpofEord  (58  Tex.  116) 283 

Watl?ins  v.  State  (61  S.  W.  532) 204,  248 

Watson  V.  Hopkins  (27  Tex.  637) 305 

Watson  V.  McClane  (Tex.  Civ.  App.)   (45  S.  W.  176) 282 

Waxahachie  v.  Brown  (67  Tex.  519)    (4  S.  W.  209) 432,  439 

Weaver  v.  Grant  (39  Iowa  294) 128 

Webb  County  v.  Gonzales  (6  S.  W.  781)   (69  Tex.  455) 630 

Welsch  V.  Cook  (97  U.  S.  543) 483 

Werner  v.  City  of  Galveston  (12  S.  W.  159) " 458 

W.  Tel.  &  Tel.  Co.  v.  Meerscheidt  (65  S.  W.  381) 609 

Western  Union  Telegraph  Co.  v.  The  State  (55  Tex.  314) 421,  477 

Wheeler  v.  Yenda  (11  Tex.  562) 195 

White  V.  Beal  (45  S.  W.  1060) 246 

White  V.  Eavenson  (101  S.  W.  1029)  (46  T.  C.  A.  158) 250 

Williams  v.  Bradley  (3  Tex.  968)   (67  S.  W.  170) 503 

Williams  v.  Davidson  (43  Tex.  34) 449 

Williams  v.  School  Dist.   (32  Am.  Dec.  243) 57 

Williams  et  al.  v.  Young  et  al.  (90  S.  W.  940)  (41  T.  C.  A.  212)  .234,  266 

Wilson  V.  City  of  New  York  (E.  D.  Smith  675)  (4  N.  Y.) 52 

Wilson  V.  Seleynon  (144  U.  S.  41) 230 

Winston  v.  City  of  Ft.  Worth  (47  S.  W.  740) 322,  436 

Witherspoon  v.  State  (39  T.  Crim.  A.  65)   (44  S.  W.  164) . . , 417 

WofEord  V.  McKenna  (23  Tex.  36) 

194,  195,  280,  284,  285,  298,  487,  493,  -496 

Wolf  V.  Gibbons  (69  S.  W.  238) 223 

Wood  V.  City  of  Galveston  (76  Tex.  132)   (13  S.  W.  227) 445,  449 

Wood  v.  Stirman  (37  Tex.  584) 650 

Woodbridge  v.  Detroit  (8  Mich.  301) 80 

Woodside  v.  Wilson  (32  Pa.  St.  52) 137 

Woody  V.  Strong  (100  S.  W.  801)   (45  T.  C.  A.  256) 286 

Wortham  v.  Boyd  (66  Tex.  401)   (1  S.  W.  109) 298 

Wren  v.  Scales  (119  S.  W.  880) 210,  258 

Wright  V.  City  of  San  Antonio  (50  S.  W.  407) 58,  223,  224,  244,  358 

Wright  V.  Jones  (38  S.  W.  249)   (14  T.  C.  A.  423) 182,  654 

Wright  V.  Straub  (64  Tex.  66) 651 

W.  U.  T.  Co.  V.  The  State  of  Texas  (62  Tex.  630) 49,  359 

Yarbrough  v.  Whitman  (110  S.  W.  471) 496 

Yenda  v.  Wheeler  (9  Tex.  408) 193,  195,  201,  280,  284 

York  v.  State  (73  Tex.  651) 230 

Young  y.  Jackson  (110  S.  W.  74) 48,  214,  217,  233,  235,  255 

Young  V.  State  (102  S.  W.  117)  (51  T.  C.  A.  366) 690 


THIS  BOOK  IS  DUiJ  ON  THE  LAST  DATE 
STAMPED  BELOW 

AN  INITIAL  FINE  OF  25  CENTS 

WILL  BE  ASSESSED   FOR   FAILURE  TO   RETURN 
THIS   BOOK  ON   THE   DATE   DUE.   THE   PENALTY 
WILL  INCREASE  TO  50  CENTS  ON  THE  FOURTH 
DAY    AND    TO     $1.00     ON     THE    SEVENTH     DAY 
OVERDUE. 

APR  16  1942 

iMt           "te^AiLii. 

^^  A?I9^ 

1 

LD  21-100m-7,'39(402s; 

